or his conviction and that is because the district court d erred in deciding that he had not made a sufficient offer proof to support his defense necessity i think where the district court was was in looking at the level of proof that was necessary to allow mr del rio to proceed to trial with a defense of necessity mr del rio only had to make a prime aphasia case and you know it was not the province of the district court to decide the credibility of the arguments that mr was making  even to think about whether and they were weak or strong arguments it was just he was only required to make a profit you're showing which is what did certainly he was faced with two evils either deliver two suitcases that if he did not deliver these suitcases someone would be killed and i think the reasonableness is borne out by the fact that when the delivery of those two  suitcases was thwarted because of mr del leo's and rest two people were in fact killed so i think under those circumstances it's very clear that mr del rio his  know i would say that that is that's definitely objective that is objective that is what he was told that and and all of the circumstances surrounding that show that and again it's not for the court to decide whether they think this is credible that's for the jury to decide this is just whether there's on the facia evidence of that and the that was definitely present in a sense the the hit the artes were contacted because they had set up this deal and once it became known that authorities were involved and contacted and  the the transaction was essentially botched individuals were killed if mr del rio had gone to the authorities people would have been killed so that there were no legal alternatives and again this is where the jury to decide whether those were appropriate are legal alternatives are not but factually there is no question but that if mr del rio had gone to the police didn't he then there would have been if people would have still been killed so factually that's true and so with that he's met the four elements and on the prime aphasia level so that the jury can decide whether there are how they feel about credibility issues again that's that's for the jury decide and if this court has no other questions on we would still like the court to address the minor role issue just in the event that there is sentencing later on so that the court can understand where i'm wrong in denying mr john rio his  minor role adjustment so going on to that issue of the minor role request the court made a myriad myriad errors in denying mr down rio's myron rolle request and i think that they can all be summarized really and in just a few sentences in two thousand and fifteen the sentencing guidelines were amended by amendment seven hundred and ninety four and basically it just clarified what courts should do what the district court did in this case is it acted as if amendment seven  four never existed it was it it gauged in an analysis and relied on an interpretation that existed between before two thousand and fifteen and for that reason it made one mistake after another the st mistake that it made is it it tonight the minor role request on the basis that mr del rio was indispensable part of the transaction of the scheme that is completely erroneous after the amendment of seven hundred and ninety four yet that is specifically what there is no distribution on of march the next mistake that the district court made and another classic mistake after the amend seven  dollars amendment was that mr that the district court failed to compare mr del rio to all likely defendants in this particular  mr del rio carried a gun that mr del rio was trusted again none of these have anything to do with the requirements of how to determine a minor role adjustment  the court at no point discussed any of the higher level or a lower level participants in the criminal activity of the people who ran the structure of the criminal activity who planned the drug transaction and who had grown or cultivated or none of those things were discussed because the court didn't take any of those into consideration the next thing that the court did wrong was its repeated alliance on comparing mr del rio to an average participant again this is a classic mistake that has been pointed out as being er and the court said things such as while the defendant was not involved in the negotiation of the drugs that does not make him substantially less culpable than the average participant classic mistake classic mistake commentary there are five that the commentary says that the court must look at the court did not discuss and did not really look at any of those three st of all the court never took into consideration the degree to which mr del rio understood the scope and structure of the criminal activity he had zero understanding of the scope and structure of the criminal activity mr del rio was approached less than twenty four hours before the transaction and said if you don't deliver these drugs for me someone is going to die and all he did was meet someone here  in the united states picked up two suitcases and brought them to torrance that was it he knew nothing else you know the next is the degree the degree to which he participated in planning  organizing the criminal activity he had no participation in planning or organizing all he did was call and say call the people that he was delivering saying this is where where mike supposed to bring these were pretty two thousand and fifteen and while he while he was going through the analysis as pretty two thousand and fifteen and the presumption does not hold when you read the court's decision and it is pointedly contrary use a presumption to ignore what the court in fact did and the court in fact were did everything wrong as pointed out in the cases of  single one we can't we can't ignore that and pretend like the court did not do that the court was thinking pretty one thousand and fifteen it totally forgot about the amendment of seven hundred and ninety four and i and he didn't even know it for any length of time it was less than twenty four hours he got two suitcases and took him someplace that was the sum total of what he did that is quintessential courier and again just as pointed out just as pointed out in the listing of of in terms of minimal roles a career is a quintessential minimal role player so with the forty three no information as to what worked what was in those suitcases he gassed but he did now and that was specifically shown in the tape recording made by the government of the transaction would get a minimal role and so that would lower the guideline range so basically you know which the court doesn't have an appropriate guideline range and can't make an appropriate oh i'm sorry your honor you cut out i can't you know we're going guard mine your honor i'm sorry off the top of my head i do not recall what the difference in the guideline range would be with the minimal rol the judge's ruling that the defendant had not provided a profession case of necessity that ruling was not based on any credibility finding or any assessment of the weakness or strength of that case the government's position  challenging dad that the offering of the defendant and the judge's ruling adopting that and then in fact accepted every word of the defendant's affidavit as true and based on that found that there was no i'm a basket case  original choice to purchase been the deal done acceptable to my supplier can you please help me out and because of the way that rudy and his approach the defendant the defendant could not reasonably anticipate that his actions alone would save the life of really a his friend but this court has been very clear that before the defendant is allowed to present the jury that he had no choice but to take the law into his own hands there needs to be a direct causal relationship between the defendant's legal action and the harm sought to be avoided defendant never showed that his involvement in the drug deal would somehow alleviate the suspicion that his supplier had it towards rudy and this friend and without that direct causal link there really can't be  case was presented with a situation where the supplier said you either help me or i will kill your wife and child there was nothing similar to bad level of threat in this case also your honor and there was no showing there's simply no evidence that in the record that the district court relied on a five year old version of the guidelines in denying the defense request rather the sentencing transcript makes clear that the court identified the proper guideline and transporting drugs from outside the country into the united states the mesquite mule is essential in fact that's the crime she's the best the mule is actually committing the crime of importation and yet we give them four point off for a minimal problem and this is where the government's you know acquiescence i think the recognition his tribute to drugs and it seems to me to simply say that you he couldn't a crime could not have been committed without him is is is wrong and you're right as a certainly honor and i think that if if the district court had relied socially a bit soley on the essential nature of the defendant's role i think that that would have been here however if you look at the sentencing transcript that really is not what he did favor however he still found that the defendant's role was greater than that of a typical courier and i think that the facts bear that out the defendant's job is not simply to transport drugs from point a to point b the defendant don't forget it's not a minimal but a minor role as compared to other people involved in this transaction yes you're right i think that the amount of drugs that the defendant had with him does and the fact that he knew that he had sixty four packages worth of drugs i don't think that the record supports that it was a guess and if there was a guess it was a pretty tremendously accurate guess the fact that he was i trust i didn't say was that the amount of the drugs offense was minor and not you know i think that it does because one of the factors that the guidelines list is the acts performed in the responsibilities of the part of the defended and in this case he was interested with a significant amount of responsibility because he was told to deliver sixty four packages worth of drugs which i think even the defendant recognized was a significant amount of drugs and when that's true  who were in boarding that they they are entrusted with these drugs and in fact the government is permitted to offer evidence as to the amount of the drugs to show that they were aware that they were only i i suppose if you're talking about a mule i'm not sure if you're referring to someone who is unaware exactly of what they're carrying and i think that the comparison i would make is to the diaz case in which the defendant was completely unaware of the amount of or what type of substance he was carrying and merely charged with delivering the drugs across the border where i believe that they were going to be taken from someone else to meet the buyer in this case we do not just have respectfully it is not just a career the defendant wasn't charged with security of the drugs he stayed with the drugs for an extended period of time and then he acted as the star's representative with the buyer and was intrusted with philip say to liberty of sixty four packages of drugs for which he was paid on a commission basis one hundred dollars per package for the state delivery of the drugs and i think we can infer from the fact that they  he was going to be paid upon the successful delivery of the drugs however the intervention of law enforcement prevented that from happening indicates a lack of trust in the defendant i think that it possibly could have reflected a lack of trust in the confidential informant which you know is another person who would be participating in a deal and would be in a position to call upon law enforcement in order to cut the deal short which in determining whether he should have gotten a minor role just or nah your honor i think the court trying to assess the level of the defendant's decision making authority and his responsibility i think that need fact that he himself felt the need to arm himself in order to safeguard the drugs is indicative of those two factors which are part of the my overall analysis i think that the fact that the defendant felt he needed to obtain a loaded weapon for himself showed that he knew exactly how valuable the drugs if you were carrying and therefore the risk that he that he had potentially being robbed either at the deal or before also showed that he had the discretion to decide what security measures were appropriate to safeguard the drugs and also to execute those execute those those decisions and in that event is actually what he did in this case so i understand the judge's point about the fact that the dangerousness involved in carrying a firearm during a drug  both i believe that the application of the minor role of just meant lowers the base offense level in and in a case like this where as i don't think it would be at the top level of thirty eight dollars i'm not sure exactly how far would come down but i believe it would come down considerably and then i believe that the defendant would receive it fair if you received a minor role adjustment you receive an additional two levels off of that already lowered guideline range because that i   i think that's because all the parties believe that what is important is to have an accurate guideline calculations for the for the district court to be able to appropriately impose a sentence and so just the fact that it changes is important and we at the time i think didn't really think that how it changed was going to be that important so i apologize for not having that information before but just like the  that carrying a gun show that mr del rio was trying to safeguard the drugs that's for sure speculation and there's nothing in the record to support that mr del rio could have been carrying a gun to protect himself because he was going into a situation where he had no idea who these individuals were or how dangerous they may have been to himself so i don't think that we can say that he was trying to safeguard the drugs he did not have really hardly any skin in this game he didn't know anything about this he was just transporting these drugs from point a to point b and he was going to be paid afterwards he was not going to get a percentage of what these drugs