for the next case united states of america versus taurus and  sounds at the outset let me i did not intend to require defense counsel to split ten minutes that was a mistake on my part so so why don't we give you eight minutes each and the government sixteen and pursue and just make sure mr sweat you're on the line yes your honor all right and mr schmidt same thing for you you can have eight minutes you want to do d six and two as well good morning your honor if i if your i wish me to briefly cover the issue of open ocean steering a boat and whether or not they require a special skill it doesn't really require so much special skill as it is an understanding of the risk one is taking i believe this testimony that he was not the boat that was that he was meeting was not going to the united states it was going into some port in central america where mr sellers tori's and his brother were going to be dropped off and then take flown home not very different than riding outside of long island or the new jersey shore in a speedboat which lots of people do and unfortunately lots of people do it probably without sufficient training but to ride boat into in the water under normal conditions it's fairly simple to make sure that you're going into the waves and not along the waves are not trained but i have several several circuits have have to sidor the issue and  included that that these words should be given their ordinary meaning there's no requirement you know special not acculturating or or captain's license or anything i mean why why should we deviate from holdings of those circuits i believe that there are two circuits both circuits including this one has not make a decision i think it's it makes common sense a truck driver has a truck driver license but he doesn't get the two points right even though he's driving it could be driving the truck in traffic in dangerous circumstances and snowing rain he doesn't get the point the speed boat driver is very similar this is not  a pilot or a captain of a large ship that does require these skills your clients are hired for their experiences fisherman and not they're hired because they can handle a boat but that me but as the special agent testify there are a dime a dozen their ear replaceable everybody every male just about who lives on the coast nice small towns which is usually get around by boat can handle a boat so if it isn't a special skill it might be somebody who was raised in manhattan to have to be a special skill to handle a boat but somebody raised and i think your question which is mine is  where does it say that special skill is required either from case law or the guidance or well if if you're honest do you find that the normal dictionary definition  applies it covers just about everybody actually covers truck drivers as well then that's correct but if you use the nordic of terms which it should be used because we're talking about conduct noriko way use the nautical terms it clearly requires additional skills to manage a boat i mean that's why i like in the new york harbor a pilot has special special skills to make it so the boat can enter into the harbor without colliding into anybody else and they use just the steering as a basis of it i think is improper but my  on the findings of the three thousand five hundred and fifty three findings a lack of finding it was very clear that the district court judge found that the most aggravating factor and the most important factor was was  that both of these affect these appellants were arrested and convicted before for the same conduct yes it is an aggravating factor the guideline to consider it is important but because it was so important to the court an examination of some of the other things and most importantly the allegations of the rest that caused them to returning to doing this activity is very important and yes judges have discretion judges decide finding the facts for sentencing and that has to be clear era but the basis of the judge refusing to accept the defendants the government's and probations findings of the existence of this duress as a result of the explosion and the kidnapping it was based simply on his own opinion his speculations that this was ridiculous we know that it was not ridiculous we know that it was not most prosperous preposterous because the agent said he heard about these things happening before these do happen to people who have made all this money driving  transporting the drugs and the fact that for my client this was his th trip after the extortion his brother nd trip now as it was testified to that a judge recognized the amount of money that these people make for this very dangerous trip both you know physically dangerous to them and bigley dangerous to them was in the nature of forty thousand dollars and my client dollars that he was going to get forty thousand dollars so for him to and he also was arrested and convicted so he knows what kind of punishment the him to go one time maybe two times three times four times after he's made four billion eighty million one hundred and twenty thousand dollars to go more right there has to be another reason other than simply money simply greed and the explanation by him confirmed by his brother who held separately in jails until they did their proffers the fact that there was something reported in  that timeframe to the police but it wasn't reported exactly what happened because in colombia in the small towns the police are corrupt and in fact as indicated in my brief that one of the reasons why cooperation wasn't successful and that they couldn't confirm things originally was that the informant that the d n a used back then was corrupt and it wasn't until they had a non corrupt informant that they were able to corroborate everything our client said about the transportation system so the agent said our client were telling the truth corp accepted their version please the court my name is sebastian sweat and i am an assistant united states attorney in the southern district of new york i represent the united states on appeal and i also represented united states in the proceedings below i'd like to begin just by answering a question that came up during palin's argument which was the location of the boat when he was apprehended so the p s r which is docket number fifty nine paragraph eleven notes that the vessel was approximately eighty nautical miles southwest of panama at the time it was apprehended and then i'd also very quickly like to correct two things that were said during a pilot's argument st mr schneider said that the rd code fendant paid their rent arista least was the navigator of the boat i believe you just misspoke because there was undisputed evidence that he was the mechanic on the boat and that is you can find that at salah says appendix page two hundred and eighty four and then the other thing i'd like to correct and i i'm happy to address the the direct argument in greater detail but it's not accurate to say that the government agreed that the duress that the extortion plot was credible this came up specifically in front of the district judge and the government acknowledged that this was something that was said in the course of the proper the government said that this was not a focus of the government as it was primarily determining whether these defendant could provide useful information for further investigations and prosecution and the government said that the  considered the corroboration provided at sentencing did not in fact support the claim that there was a extortion plot there were letters that reference robberies but there was nothing from the spouses from their children that specifically said that there was an extortion plot as laid out by the appellant the district court made a determination that that story was not credible and one of the factors that the district court relied on was agents and the ball testimony that these mariners are in effect fungible at the district court reasonably concluded that fungible mariners if they are in such ample supply don't need to be extorted because you could simply find another merit or two to do the same job that finding was reasonable and the sentence imposed was substantively reasonable it was below the guidelines range as calculated by judge  sullivan and and frankly it was it was primarily driven by this question of recidivism and judge sullivan's determination that that these defendants had not been deterred based on their prior conviction i'd like to now turn to the issue of the enhancement or acting as a pilot or navigator or copilot as as your honour's have noted other circuits have looked more at the practical actions that individuals take on these boats of stylus who is in criminal history kind of category to that original calculation resulted in the guideline range of ninety seven thousand one hundred and twenty one months correct that is correct and within that that sentencing proceeding which the government acknowledged that that was an oversight that was not a determination that these defendants did not fulfill those roles go to their middle and then and with  and the pilot on hand results in two points so if you it had kept them as minor participants but simply added the pilot enhanced meant you would have then had a guideline calculation of thirty one dollars and mystical and a stylus would have it would have it would have added that and it would have been arranged it would've been a level of thirty one dollars and then and but the judge sullivan ultimately backed by both adding the pilot unhandsome but also dealing with the issue with respect to the minor had not imposed the pilot enhancement for mr cole on his solace is his ultimate sentence still would have been below the guidelines range that would have resulted so without the pilot and meant mr cologne has salis would have faced guidelines level of thirty five dollars and he would have faced a criminal history of two which would have resulted in a range of one hundred and eighty eight dollars to thirty five dollars and so even if the court determines that mr calculation of the pilot enhancement was in error it was clearly harmless sullivan went below what would have been the guidelines range even if that enhancement had been applied i have gone down more i suppose it's possible it is possible but ultimately given that the standard here is a preponderance at the district court level and that on review the question is clear error there's no indication that judge sullivan committed clear error and making that determination  i would like to the mr schneider in his argument said that there was no evidence that mr cologne histology acted as the navigator and that's that's not accurate for starters  the special agent special agent and of all said that there were roles on these boats that he had observed in his experience working these kinds of cases the rules are captain sort of the personal ultimate authority mechanic who's responsible for sort of keeping the engines running and then he called the rd roll a navigator it wasn't clearly defined at the batek no but if you look at the record they're sort of an indication that it's both the person who obviously navigate the boat but also someone who acts a sort of a copilot took turns steering the boat just did it just how long the trip was especially just out of all certainly testified to that and that was something that judge sullivan considered relevant when he applied the enhancement for mr cologne to solace he said in effect this is a long trip people have to relieve each other you're traveling at night and basically i believe that he was in that boat the pilot and to navigate it and so while there's there's no  trip and the fact that there really were no spare individuals on these trips there were there were no you know there were no cooks there were no pleasure cruisers everyone there had a job that said and and  but but ultimately the pilot enhanced is sort of based on the sort of ordinary definition of someone being a piloted navigator which is been adopted certainly by the st circuit and the th circuit it means that the finding there is really less related to the witness itself it's really more what the what is is known about what the defendants had in terms their role because the witness themselves seem to disclaim really having much knowledge about navigating the boat so it's really relying on their understanding of what they were doing on the boat i think that's right i think judge judge sullivan drew inferences from the way that these trips work and and the fact that in this particular case the they did that i mean i guess i'm less i'm less troubled about any any this any inference that was drawn based on what was the activity on the boat but it seems like relying on the witnesses says i've never navigated the boat myself driven or been in the water i really don't know it doesn't seem like that's really a good basis in even though he talked about is the experience whether or not he really sort of made enough of a foundation for wonder drug that evidence you know could be more questionable but but it seems that certainly in the initial reference there'd been a reparative to one of the defendants being kept and then in the other one playing a role the district judge certainly could draw an inference that that was the position to meet the definition for the yes i don't think that special agents and of all was testifying about the skill required or or even what was done on the boat based on his own experience either in the navy or in the certainly he wasn't basing it on his experience piloting boats i think he testified that it interviewed dozens if not hundreds of these individuals he had talked about the trip and so he had a general understanding that mariners that the fishermen were recruited because of their skill they were paid a certain ct according to the definition supporting the guideline pilot copilot navigator operations officer and i would note your honor i'm sorry i would also note that both with respect to the judge sullivan ultimately concluded that he was that he was not acting as a pilot copilot or navigator and the citation for that is docket one hundred and nineteen dollars which is the sentencing transcript was no evidence he had done these trips before he stood to make less money his role was that of mechanic which is someone who tends to the engines and so again when when assessing whether judge sullivan's factual conclusions clearly erroneous i think it's hard to say that he wasn't carefully considering the facts of this case and he wasn't drawing distinctions not only between mr cohen histology mr silas torres but between the two of them who had done this before who on their path which is a patient and to some extent the quantity of drugs he was in comparing their role to the the enterprise as a whole he didn't there's no reference to the kind of discretion they had there's no discussion about what their knowledge was the entire operation so they were there are sort of some of the factors that are listed in terms the guidelines as amended in two thousand and fifteen that aren't really addressed so that it is it your view that that was unnecessary it's argue that that there were factors that could have argued that could have warranted a minor role adjustment and in fact that was the position the government took below but on appeal the question is whether the court's conclusion was clearly erroneous and certainly sullivan focused on particular factors that he found most relevant namely the fact that they stood to benefit financially in a significant manner the fact that they had done this before the fact that they knew that they were transporting such a large quantity of cocaine and there was there was a back and forth below about sort of how to define the scope of the organization and this case  to how far back it stretches and how far forward it stretches but judge sullivan sort of focusing on the transportation of these narcotics found that the to a palance were not did not have a minor role they had some authority n when they were at the about when to jettison you know how to undertake the journey i don't think it was a lot of discretion but i think judge sullivan rejected the argument from council below that they were sort of atomics on to basically plug in to an address and then from that point on had had no role or discretion at all so i guess i can agree because what language was i just one things that i'm trying to make sure not to conflate with seems to me might be inappropriate in aus with respect to the pilot or navigating and meant from the question of minor role which may be a separate inquiry and that increase really being trying to figure out is there is something or are they substantially less culpable than sort of the copas been there and it would seem to be the coca business or hand aren't simply the people on the boat but who is involved in the operation because my understanding is that none of the none of these two defendants had any role in the drugs or quantity of drugs they were put on the boat where they were supposed to go with the boat they also weren't picked up one any of the wiretaps so and so i guess the question is are those things analysis that the district has to do i guess your view of that even if he didn't do that that's not clear or i don't think my and now i don't think i'm saying that he didn't do that those questions were were litigated and they were discussed at length in front of the judge  whether he is specifically addressed them in making his rulings i think it's hard to say that they that they were absent from his consideration because clearly there was there was a lot of back and forth about other members of the the  for this earth to use common sense and i have to say be grateful and be both of course you think the english long very much a definition doesn't make call when the boats when the planes were coming in they actually had to make a satellite call this the see if they're allowed to dump the drugs there was zero discretion zero start now the government independently corroborate details regarding the defendant's hardships it generally correct see if the mission the defendants provided the government believes that the fence faced extreme choices in part that led them to reoffend that the statement that they did believe that they had this pressure on them and in the government's sentencing submission again they basically said that they in multiple pro really gave all information he had and his historical involvement willingness to cooperate i mean they they believed him and they didn't believe they would accept as to the records of the robbery that the family sent up what the government is asking and what the judge the sentencing judge is asking is that our client was supposed to go to the police and explain to him that we might check my family was kidnapped and threatened and i had to go to the chair who was the head of the drug trafficking organization to get the money to pay them off so my family would not get hurt and now i owed money to the drug trafficking organization and i'm going to go on the boats to pay him off because otherwise my family will be in the worse shape as they were before it was not the chair who kidnapped him the chair utilized gave no money and was going to get that money back by utilizing my client and his brother as the mariners because it was easy for them and they didn't care they got caught they just wanted them to go so so there was was corroboration but more important than just the corroboration there was absolutely nothing to challenge what they said and if anything even the agents that supported their position thank you thank you both thank you to the government the court well