tell you how much time you have left there amber light goes on when you have two minutes and the red light goes are on kind of complaint or your thought unless we have further questions after forty five seconds the prep door opens and you go down to the basement no i said that before and for more it got really shook up but that was really a crap door that opened up but there is no such thing the first case of the morning is united states of america critical role in the clinical criminal activity amendment seven ninety four to the guidelines which is a clarifying amendment that does apply on direct appeal makes clear that whether or a defend is indispensable or essential role is not a determinative factor in the mitigating analysis and that instead the court should assess the relative culpability of the participants here because the court relied primarily on the critical role of determination and did not the right legal standard and then the case should be remanded to the district court for it to apply that standard to the fact the case with the time i have this morning i'm going to address effective after sentencing if they are meant to clarify the application of the guideline and rather than intended to make some substantive changes here according to all the factors are all most of the factors that this court has found to be important in determining whether an amendment is clarifying this a minute is the first and i think perhaps most importantly the circuit said it is and i have not found any circuit that has said that it isn't obviously this court has said a couple of times that it is predetermined in that issue and said it was unnecessary to reach but three circuits have said it is clarifying and i have not found any whether dissents in any of those cases i don't believe so that you preserve that the specific seven ninety four amendment objection here so i actually strongly dispute that that it was necessary to specifically raise that and then that to the district court to preserve the mitigating role issue or to avoid planar review i actually have not found cases involving clarifying amendments where the court found the minute to be clarifying and conducted a separate plane air analysis to determine whether in the rubble i mean her statement is a little hard to conclude which way she's got concerns about the guidelines for a really the more you read it the more i was unsure whether she was saying she disagrees with the amendment or the logic behind the amendment or the opposite so she is is the district judge i say she but ok so so to the extent she's saying being a critical but four component of the conspiracy means you can't have a real reduction that would be inconsistent with seven ninety four but if it's really you haven't really told me that this guy is a mule as you're saying he is factually then that objection which seemed to be what was being urged to her wouldn't embrace that she's got a legal area issue well i even last just quick question on this even under seven ninety four or just a factual characterization of him as a mule isn't the fact that this guy admitted that he had his own baggies he was a trafficker himself wouldn't that under any law mean that she could say he's not just a transporter he's got a proprietary interest well first i would point out she did not say that she did not just didn't sayer but others and there are there's no facts other than th baron mission from him and that he was going to sell that those those baggies there's no facts about who is going to sell it to there's no possible way was he going to sell it to his you know cousin down the street i can't and i don't think there'd be a case of maybe i'm wrong where we would reverse a denial of a role reduction if the alleged mule transborder was also profiting or admitting that he was a trafficker i agree about the factor here i think i think the thing that i don't want to lose sight of is that the difficult actually applied the wrong standard so those  findings i think are not appropriate for this court to make even for a harmless error type analysis i don't think so because she is what she discussed was the critical role and you know she even discussed the fact that he hadn't had it made of a previous trip but even that discussion came in the context of discussing the critical and i think actually what is helpful if you look to the cases that the commission cited in the reasons for admin meant for the reasons for this change or th minor role adjustment and make that factual argument but your argument to us is she should have considered what the district court's ruling was inconsistent with it's clarifying amendment and you never addressed the clarifying amendment to her it isn't the whole point of preservation to give the district court the chance to correctly apply the law in the first instance to prevent errors from happening so that we have all these appeals and she just didn't there's no indication that there was any the you know the the cases these court cases about preservation of their had made clear that as you know when the issue was presented to the tissue core and additional court has an opportunity to rule on that that should be sufficient even i would point out that the became affective after sentencing and this court applied plainer review to that situation it did not assess whether that amendment was clarifying or stop the tape i think if it had i think would have had to conclude it was not clarifying but still found clean air in the dish reports failure to consider the proposed amendment because that in that was a statement from the sentencing commission but that that new guideline had never been dressed appeal but i do think it's also important to remember that a clarifying amendment clarifies what the guideline was intended to have meant all along so it clears clarifies how it should have been interpreted from the beginning to remind me did the  knows seven ninety four she's speaking about disagreement with that but there's no way to know there's no way to know i think that would be speculation and certainly it's possible that probation did not point it out and no one specific like addressed seventy four with her  five eighty two authority what would the relief be i think really so i think you have to consider both issues together i think if you agree with me on the minor role issue think there is no need to preach the rule then the appeal from that written judgment some of our case law would suggest that we would have to dismiss the appeal and i'm not sure then where where or what would happen would would there would be court would still have to address the minor issue because the minor role issue goes to the dyed lines calculation which was an error that came back even before the district court's initial sentence that the one thirty five sentence i think that's still an objection that was  still injunction that was preserved so i my position would be the court does have to address the minor role issue regardless of what it thinks about roe pretty five and the other scenario would be the it would go back judge it would get interim the one hundred thirty five months and then you could appeal that again until i mean i think that's a possibility i think there are some cases you know involving situations where or didn't follow the client's instructions about an appeal of the kings island appeal and that the court has done something like that where  or there would be a subsequent opportunity to appeal the matter old issue because we do still think that what your recommendation having read i'm sorry no i'm just wondering now that you say you've looked more closely at a large tax what do you think is a spell out exactly ok so so in your mind re sentencing for package open she can do it all right you put seven ninety four write to her and we'll see what happens right just ok so that does underworld thirty five is just a technical error or technical error she announced what the sentence was she said is one hundred thirty five months i do agree it's you know it might be a little bit surprising given what she said just prior to that but i don't think it was something that was so clear for example it's not the kind of mathematical error at issue in a large a where you can look at the face of the record and see oh there was a math there we can fix that we can plug in the right numbers and see what it should have been here that there was only in the judges one other internet if the test is that you can't just you judge can't reconsider have misgivings but instead it's got to be obvious enough error that we would reverse wouldn't the government have been able to appeal her one thirty five if there were no grounds given to depart downward and the only enough reasons for the sentence it's certainly not an error that's clear enough that it obviously would have required remained which is what the court has at th closed the core of the sentencing here occurred six weeks before and then the seven ninety four became effective regardless of the standard or for you regardless of amendments seven ninety four the of yesterday i think or so i checked on monday so you're you can call him but i don't think i'll call my boss but forgot but and i think the brief treated it as though it were it was a clarifying amendment but regardless of whether we're pray or post seven ninety four it's a fact intensive inquiry and seven ninety four did not did not strip the district court of its discretion what it did is provide additional guidance but that words was not exclusive and so what we had here is we have a very experienced judge who sits on the mexican border she knew sanchez was transporting a large amount of cocaine it translated into just above ten pounds of cocaine that's a lot of cocaine she knew he had a history of drug trafficking he had three other convictions preceding this one and he was involved in the same transaction a month earlier and she said as much and it involved the same person that to paro he had got the drugs from and he took them to the same individual and it's i'm just spirited that the amount was basically the same where they challenged it was on a purity issue which is unrelated to this more importantly she knew both from the p s r and from the agenda i'm following his objection that he had been given a gun that was loaded an thousand rounds of ammunition for his protection also as as i believe it was judge higginson's he was also keeping four bags of drugs to sell separately i think those are all very powerful factors and if you were just coming up with her having done that balancing i don't think there's much circuit law that would say we'd ever change it the trouble is when you look at her language and you know it when a particularly using the very word critical and then not mentioning gun and not mentioning that he had his own bags in that just first it it's hard for me to know really that's what that she was basing it the role reduction denial on what you're saying as opposed to he's critical if he weren't there the big guys wouldn't be able to do it and that is that is seven ninety four well first she was she was hesitant to use the word critical as you know and she says i'll go ahead and use right but she was hesitant the other thing is we clearly had a judge she was prepared and if you look a page or two later she was very familiar with the entire record and and there are cases where the judge many cases where this court gives the judge  case that would say even if she made legal error it's harmless what's your best case for the i don't want to give that this situation is a little bit different because what happens here you have tours hernandez and you have castro right and those were both transportation cases i realize one was in a backpack one was was something else but in those situations under of those amendments under under seven ninety four this court found that that the amendment  excuse me not the amount of the mitigating role adjustment did not a plot and what's important to remember here it was the defendant who had the burden of proof and he had to prove two things right he had to approve he had to prove the average protests average participant in his drug trafficking organization not the greater universe which is how the defense was arguing it during the sentencing hearing the defense was arguing the standard military typically does x y and z that's not the test the test is you have to look at this particular drug organization and then secondly sanchez was responsible for showing he was less culpable than the average participant in that group and he didn't do that and seven ninety four is this court has has interpreted and tourist terror in america sees me in castro most recently you don't have a right to a mitigating role of just him and just because you're not the criminal mastermind the judge recognized some of those things saying i realize essential that you're not the top dog but that doesn't change the fact that he was caught with all this information and the judge was trying to or the judge specifically said later that she was trying to be clear on explaining how she was so and seeing him because of the twenty four month despaired which she says later so if you take that all withing context the judge wasn't just singling out his quote critical role she was with all these things and if this quarter seven ninety four would have you once a judge to go into great detail about why or not giving a mitigating role of just meant then the court needs to say so but are you saying are you are you know are you saying that this individual was more than just a drug mule i mean that there was evidence to show that he was more than just someone who didn't know what was going on and was paid to carry this stuff around well i think that the evidence showed that he had a clear understanding of the drug trade and when you add all of these things up together we can easily say he was just a transporter or a courier if we single out that he was caught in a vehicle with drugs in his car and that's that's kind of an easy thing to say but you have to look at the big picture it's a factually intensive inquiry and here what we have as i said before is he had the extra bags he had done the exact same thing a month before he was he had prior drug convictions which adds to i realize that has to be within the universe of this particular one but it shows that he has savvy about this type of thing and he was he had the gun for his protection somebody had given him to borrow or somebody had given him the gun to do this transportation it wasn't just like the fellows i believe it was in taurus hernandez who were crossed the rio grande and had some backpacks with drugs this guy had a lot more and the judge was keenly aware of that and as i said before judge alvarez is on the border so she sees these types of cases frequently and as i said and as i also said before it was his burden to prove the entitlement to the to prove the entitlement to the adjustment and if you look at the standard whether plain error plausibility in light of the record it should suffice based on this court's precedents and the comments at sentencing if you store understand your your  your if you were writing this or recommending how we write it your position we could say there's no legal there at all because the m m it's not retroactive you're not pursuing that we could say it is legally or under seven ninety four but it's not or because they didn't object or it is legal there but it's harmless because there's no clear error in her assessment of the mitigating or is there a different door you're recommending well i'm recommending that there is no legal error whatsoever i mean i think there's no eyed with seven ninety four those statements are consistent i believe that it is those again there are two factors are not exhausted and what the d the sentencing commission is trying to do we do think it's inconsistent with seventy four then what's the government's argument if it's inconsistent was seven ninety four this court has various options to it which are obviously coupled with the thirty five very issue right little bit but tell me the option you think would be well i think that if the court believes that plane error applied and then it could find that the certainly the fourth prong would not be satisfied because it doesn't shock the conscience right then the third and up third prong is a little more problematic because so then we would be in harmless is that what your ass i'm asking you where we would be well i think as we said in the brief it would be plain error but alternatively it would be a clearer situation so then you would be into harmless error which for the reasons i said in relation to the third prong is more problematic when the judge did not say i'm imposing an alternative sentence and here is why and gone through all the way those type via berowne and those types of cases i recognize that so but the other issue of course is the thirty five a and the cases are somewhat interesting because if you look at mensa and some of the others to do you have a line of demarcation if you will jim judge pounds the gavel right because in most in some other cases including cases i've looked at throughout the united states if the hearing is still ongoing it seems as though the judge has some freedom to do what she or she wants where the gavel goes down and then the defendant leaves it seems like then the thirty five a curtain really comes down and courts become much more forceful about applying the narrow standard this case is very different from most of those cases and some of those cases you have a situation where a judge made a mistake and maybe at the government's you know that because the government mistakenly led the judge into believing that there was not a mandatory minimum and there was or there was a guideline calculation or something let's just say arithmetic right that something had been misapplied in other cases you have a judge who changes his or mot his or her mind sixteen months no i think it should be seventy months or i think the senate should be more reasonable or not roosevelt that's not the case here the judge repeatedly said at the second hearing that she had misspoken that it was never her intention to employ the two to to impose the hundred thirty five months and when you look at what she said leading up to it it does say that i mean does it or it supports what she sent of course she does say something entirely different right she says twenty months below what what she was looking at and so then it becomes is this a technical or other clear error because i don't think we can say it's an looked at a lot of cases i have not found anything that is just like this one it's different we have a worse situation i'm sorry we're both typing yeah actually i didn't write the brief but i thought that was pretty clever like that it this case is just very very unique for the reasons i said because it's post gavel but it's the same day right that the defendant presumably hasn't even left the courthouse maybe he has i don't know it's not the record and question of whether it's technical or clear some outfits with well i respect i call it the gavel cases just because i think it's it's easy to differentiate those cases to because they don't always talk about thirty five they say more or less treated as a continuing equivalent of technical because it's the oral pronouncement was inconsistent with itself that's correct and so it becomes do you the court only because this case is unique from what i can tell i've looked at a lot of cases it does this court believe that that either up lies as a technical or other player error because she's not riggs salmon in her sentence she's very clear she's not reconsider it can reconsidering her reevaluating it really i mean obviously maybe the situation she's busy sees a lot of cases but if the rule would undo it self if it were just the district court saying i'm not me thinking it but giving no other reasons that would allow for misgivings and  consideration so well it can't just be not me thinking with all due respect i think most district court judges are much more ton chances than that i don't think they would would take advantage of that per minute it isn't in a lark a situation it's unique but we think it doesn't allow for rule thirty five correct well in ross what you did was you vacated in reinstate it but what's problematic here now you get back to the mitigating role adjustment right you just can't give him one hundred thirty five sentence hundred thirty five month sentence such crises vacate reinstate reinstate what well in ross they put in the first  the first sentence or there was a judgment before the sad believe it was less of those cases from what i see always talk about the oral pronouncements because they're finding the oral record and figure out what we think one side can you stand  rough following ross we would now look back at the transcript of the sentencing and say we think this is what she meant even though there's blurriness are you talking about the one thirty five or the one fifty five when you look about the if i were to say her and you didn't have authority to issue the judgment that you issued and therefore i'm following my precedent and it says we're going to reinstate the oral sense that controls it is a little hard for me to know what that or sense would be because she says sentences before the one thirty five she says i'm going mid range yes they're impossible to reconcile well and i also you know those cases when you read them and not just in this jurisdiction but elsewhere they don't really talk about the judgment the written judgment they focused on what said the first hearing and what is said the second here now what she was i don't know if she was careful to say or she was just a phatic about her mistake is she depression or but the hearing ended at nine forty five and they were back in court at two o'clock now i don't know when she realizes i don't know if there's a problem bring a defendant factors people have lunch lawyers we don't know at all the law what would you say that we that down below that issue's been taken care of through there has it you know i mean if if you're going to find that that was error or whatever then then that can be discussed in a recent site if you remain for recently saying obviously the the mitigating role adjustment goes out the window because it's a full sentence and so in a sense right that's the easiest thing to do rather than grapple with a lot of these issues whether it's clarifying and it was sort of end seven ninety four i think in a sentence or one thirty five with in the right in the middle of the guideline range you would have with the minor really just the right thing to be one twenty to one fifty the range the defense is asking for one thirty five right but that's speculative on our part that the judge would do that again you know the judge i believe the record shows that the judge followed the applicable law of man the mitigating role of adjustment but if and all that lot but him but we don't we don't know that if we send him back and reinstated the one thirty five with the government's appeal clock story well but you would have a new judgment so yes then we'd have to determine right whether or not the government thought that was reasonable but one thing you have to remember here is the defense did say the government should have objected and want not but but i just agree with that characterization and here's why while the judge said some things leading up to what you would have thought would have been a higher sentence the government wasn't going to challenge the reasonable that this is that's not what this case is about whether the sentence is reasonable or not what the case is about is the judge's mis judged misspeaking send it back could the court consider go back and say well you know i've considered him and i still don't think he deserves a medal getting broke she may do that on this record it is not clear that she would do that and that's the problem and also into ours hernande castro the comparisons being made between people of essentially the same roles so for example tarzan and as who's a backpacker and its capability was compared to other backpackers they all had they were all carrying drugs they were all held responsible collectively for all the average participant it did correctly state the standard that the comparison is between the defendant here and the average was the point in this particular criminal offense not to some hypothetical average participant so if you look to the written that you don't agree with me on the minor role as you know if you did decide she did not have the jurisdiction to then bring him back in the afternoon and every sentence i think that one thirty five is a sentence that was orally pronounced on the record that would then be reimposed that is you agree it's a verbal type of it seems to advocacy obviously that you want to go within the guidelines she's reading then you know probation gives you this summary of what to read and if i can look like a three and i think that's probably what happened did you agree it was a touch you just read the actual sen don't know what she did i mean i do agree that reading what she said ahead of the sentence it wasn't surprising that she would go below the sentence i don't think it's clear exactly what happened i think that the only way that we know that it was a misstatement was becomes and she brings him back later and says that it was and it's not that it threw the unequivocal she wasn't going to go below the guidelines out of the one thirty five be consistent with again it was surprising that it wasn't something that was so clear that it made anybody jump up and say hey that's a downward departure that you haven't given a reason for it it was not what was expected but it was what was orally pronounced and i don't i don't think it's something that's clear enough that it's clear to me that obviously this court would remain and if i came up on appeal a sentence that it's not a technicality this is not a technical thing and she gave reasons but then when she said here's the sentence that i'm giving you for how long you're going to be in prison that as a new a very serious pronouncement it's not something that's just a technicality it for example is not like she announced one fifty five and then the court reporter misread it that's not what happened when she actually announced the sentence it was she said that it was one thirty five i think that's not a