aspects of his rest her house his life my colleagues in the will sometimes we're looking at a case here we try and think how does this somehow related to western literature but you know this didn't seem to be a watering heights kind of case rather it seem to be something out of a life time cable movie we'd see some show about a lady who sells marijuana on the side to make ends meet that then gets transformed when mr redding intervenes and talks his rest her house into an episode of breaking bad which is a show about a generally decent guy who under circumstances starts to sell methamphetamine and like the whole story you know if everything really goes to the devil this is still this is more this is still that pathetic case ms rest her house is not a drug  mastermind she's a woman who was doing the wrong narcotics and who was doing the wrong things once she cleaned up pharmaceutically she began to cooperate as best i can tell completely with the government regarding her conduct and that of others so this led leads us to the point not that she's not guilty the offense but what is the fair and just sentence for her offense the going back to booker procedural due process as well you know the guidelines aren't mandatory but they are an important start so that we are sure sure that as a trial judge you look at each of these careful points we have developed over time to see what's fair and just the safety of our provision which is what is the standard we're using here to review  first and foremost we're saying as a matter of law her conduct that the issue that judge younkers objected to the telephone call where she said to sky this guy that heard me and took my money getting we're saying as a matter of law that is outside of relevant conduct as set out in one b one in section two he raised that before the trial court did she say that this was not related to the the offense conduct that this was not relevant conduct while they went on at length about that not being this being something separate their primary focus was these aren't credible threat that that she this is these were not credible starts these were not true threats so it was a really an act of violence that we would have to review judge junkers determination that they were credible threats for abuse of discretion mr house would contend that there is sufficient discussion that it would be good to know of a review of his legal decision to deny her this credit because in fact it was not conduct related to the office i renewed my question where will i find in the sentencing transcript which i read that she raised that before the judge i will have to review to be sure but i do not believe it was expressly raised as a matter of law i believe that is correct did he know what is the standard that we're using i would go with abuse of discretion because since it's clearly contrary to law for him to do so that would constitute an abuse of discretion by the court i'm going to give you points for that but i'm struggling see  yes ma'am i'm struggling to see how you get there other words there was an enormous amount of discussion on the record about this about who she was and how bad she felt about this and you know could she really have expected that this was going to be cured all of that but that did not encompass a claim that it didn't have anything to do with the underlying offense which is what you are now raising and saying that we should be looking at as a matter of large and over that that specific thing and i don't see how we get there and you weren't there i know that you're here on appeal but you're right it means my job to fill this hole so the i would i would contend this is not a point here because they objected to the characterization of her disqualification for the safety valve for this as an act of violence that the discussion part of the offense even if a plane here a standard were to apply we would contend this is this is still clear it is error and it's on the face of the record because the both the colloquy and even the discussion at sentencing pretty well details the course of these events in this issue were slacked beater and took her money was just on related to the methamphetamine operations which under one b one the relevant conduct preparatory the act of offense and does this such a safety valve really require that it has to be related because maybe this is just something we don't even need to worry about although i don't think it was raised but does the safety valve require that i thought the safety valve just said one of the factors was that somebody hasn't engaged in this kind of conduct regardless of what it's related to oh well it is up addressed in the circuit but the cases we cite cited in fact say the violence must be connected to the offense now most of the cases talk about the presence of a farmer but that's in part because thirty five fifty three says no act of violence and no firearms but the case law i believe in this district does say if you can show that the firearm was not possessed in connection with the offense then it is not a disqualifying factor under under the safety valve so there was if you can show the meth dealing and then while she's in jail detoxing reading the guy that began all this like we can argue about the scope of review it just seems to be connected to me one by one talks about what is relevant conduct and so if its defense is over at this point she's on the run so  conduct after that can be considered relevant conduct if it is related to avoiding responsibility for now her running was trying to avoid responsibility but his act of beating her and stealing that was something separate it's there's no causal connection at meaning meaning her drug funs yes she took him well took her money i don't know whether you knew they were drug money or not but he took her money and bitter i don't know if slack knew that this was drug proceeds although he i think was a criminal too and why he beat her i mean that's gratuitous there's no reason to be somebody that battle that's causally separate from the drug oftens and she's already in jail at this point the cases we cited that are non farm related when they engage in an act of violence it is somehow connected to trying to avoid responsibility if it is after the crimes completed the act of violence must somehow relate to responsibility the two cases that we cite in our twenty eight jail letter one guy went out threatening to kill witnesses so that's clearly an effort to avoid responsibility for his crime in the other case and there are some others gibli the governor's office side d people who try and when the police come to arrest you and you know they ram their car into the police police vehicles well that act of violence not assault is connected to your escape which is part of the continuing course of conduct that is relevant conduct so you're making the point that whatever happened it was in response to what he had done to her like beating a rat as a separate independent criminal act it had no it would assuming that help assume that reading the father of all this had killed there would be another crime it would be a murder but it would be unconnected to the meth eeling because slack isn't part of this it was a vengeance killing because he beat her up badly and i can only imagine trying to read with a broken respond but and took her money so the it's a separate independent offense if she were charged with solicitation to hire that would be a separate offense from the crime of conviction it would be tied to the relevant conduct and we know whether the judge listened to the tape as best i can tell he did not i'll defer to mr lynch but he as best i can tell was relying solely on paragraph thirty eight of the pre sentence report and its account so he didn't have he was rejecting the probation officers conclusion defense counsel's conclusion for most of the tape and the prosecutor's conclusion in summary from listening to the tape he was he he didn't listen to the primary evidence he's inferring strickly from this paragraph and that and in which we continue contin would be improper also carries over to the five k one departure if you look at the judge's statement of reasons as to why he is not giving the four point two requests for point downward departure requested by the government he gives a number of reasons he said in some of them straightforward she's more competent but he also says it's because of her threat to kill this guy but the whole reason that he had the money that he took which made her so may at course that the beating as well but the whole reason he had that money was because it was part of her attempt to hide it from the investigation that was going on of the the drug conspiracy so how is there no connection there because his independent act of stealing it and assaulting her are separate from her effort to avoid responsibility in fact it defeats the entire it defeats her efforts within this continuum of relevant conduct from the meth dealer yes the money came from the narcotics as best i understand from the record but what he did was under he didn't help her it was nothing that was the that was promoting her effort it had to do and with the money that came from the drug operations she was trying to hide anyway the be your oral argument today so i assume it's in there but i'm not finding it right away and i will check i would say that it's it's discussed in the initial brief in terms of whether or not may please the court my name is heath lynch appearing on behalf of plaintiff appellee united states while this case presents a fairly novel pattern facts defendant who starts out making death threats against a coconspirator and ends by testifying against co de fendants and others the legal analysis is on complicated each of the three issues raised by the defendant is squarely addressed by the district court record which indicates that that court clearly and independently considered not only the reduction but also the value and extent of the defense cooperation the appropriate reduction to give and then finally consider the appropriate sentencing factors and reached a sentence that the court deemed to be reasonable and appropriate from this rest her house given her conduct first as to the issue of the safety valve at best here for the defendant plain error review applies this is a situation where the court could reasonably conclude that the defendant outright forfeited that argument she never raised it in the district court she certainly had the opportunity to do so she was aware that the burden to demonstrate her entitlement to the safety valve was squarely on her and she didn't raise the notion that this offense had been can whether the conduct  trafficking conspiracy and while most restaurants pled guilty to possession with intent to distribute methamphetamine the record here in form of the pre sentence report is replete with references to the marijuana dealing that was really intertwined with the methamphetamine dealing the drugs are coming from the same place in california they're being shipped to the same address in west michigan and the fact is mistrust her house it would be nearly impossible to disentangle the proceeds of the marijuana trafficking from the proceeds of the methamphetamine trafficking so we're talking about a a threat of violence here that the district court in its judgment determined to be sufficiently credible that it took miss rest her house outside the safety valve protection this tric hear that tape i do not believe so your honor my understanding is that the court relied upon the pre sentence report summary of that and i thought about that when you're on a raise that a moment ago and  don't recall it being made part of the record certainly but i also realize that it would not have been if the defendant had truly believe as her counsel argued at sentencing that this comment about dropping mr slack was taken out of context it would not have been a difficult thing to of have made that recording part of the district court record the fact is she could have requested that the district court consider that recording in its full context or consider the transcript of the recording and made the argument that hey this is a situation where we have some particularly graphic language that is being given too much weight by the court she didn't do that despite the fact that i'm sorry but doesn't this  her tourney is the court to listen to i don't believe i don't believe your own are you referring to the portion where billy says so you know again i think you have to listen to the entire call she or i think that that's her speaking correct the defense defense counsel missed her taking into all the considerations as a will i mean there's now that was in the context of credible threat but it was she didn't entirely ignore the issue it will clearly she made the argument that that this this graphic comment was being given on duwayne that was being taken out of context by the pre sentence report and then and then by the district court so did she mention  wouldn't so she went so far as to to request or demand that it be brought onto the record at that point and she certainly had ample opportunity to request that prior to sentencing so is the court driving out whether there be standard of review here or the substance of the issue because either way whether the court applies plane or review or clear error review which it ordinarily would do regarding a safety valve determination she failed to beat her preponderance burden here in the district court didn't commit any error in concluding that given the reasons that it's clearly set forth on the record the court surely give him the transcript look carefully at the nature of the comments the condition of mistrust her house was in at the time of the comments of both the defense of the prosecution i was there and this was a situation where it was it was it's not unheard of but it's certainly on common where the parties go into a sentencing hearing agreeing about an issue and then the district court ultimately reaches a different conclusion and the fact is i stood before that district court and made the argument regarding the credibility issue and he as his very much free to do so at a different way and gave me very clear reasons gave us the parties very clear reasons why he sought a different way and i think in this instance there's certainly enough there on the record for meaningful appellate review and given the standard of review that this court has to apply under these circumstances there is no error here on the part of a district court and i think almost as critically the district court made it abundantly clear actually used the word bottom line when referring to a one hundred twenty month sentence that the court ultimately imposed here so the district court actually stated that given all of the context of factors given her role in the offense given the nature of the offense given all the circumstances that the court has to consider here that even if the court had given her that to love a reduction for the safety valve he mentioned the court would very upward to reach one hundred twenty months which the court deemed was the best sentence for her under the circumstances you were the counsel below i was before your i mean maybe i should clarify my colleague prosecuted the case indicted the case the what after the defendants had pled guilty he left my office and so the case  bit by that that's what's going on that is the reality yes yes we asked for a greater reduction than what was given we agree the safety valve applied in the district court clearly disagree so this is a situation though with respect to have gotten higher said that she received a higher sentence than she should have because he clearly said he was going to get one hundred twenty months in any event so when we deal with him shifting here with substantial assistance motions which have to come from the government and the government can say you know this is this this information was worth absolutely nothing to us and the court can't even review that i mean even the sentence in court i mean it has to come from the government so when the government makes a motion and says this is what this was worth to us so should there be any deference to that given that it's all in the prosecutor's hands deference given to it by the sentencing quarter by quarter and review a sentence in court she would be should we require  more explanation explaining why the prosecutors wrong i mean basically what the judge said is this this is one the mill cooperation it was it's worth to when you know how does the judge really know what it was worth to the prosecution you know without some record of just asking you to respond to that by and large in my experience and i guess just to to be clear i think the case law is and we cited it in our five a motion that we filed indicates that the district court has to give some deference to the government's view of the value of the cooperation but that and i think that that is reasonable out of the circumstances we know what the cooperation is worth but we've course have to set forth a basis on which the court can make an independent judgment because the district court is of course the one that are ultimately decides on whether to reduce and the extent of the reduction so in this instance i think the court did very clearly state what we were asking for stated what we believe were the valid reasons for that reduction and ultimately said but you know what i don't think it's quite as strong as what you claim it is and i think the courts entitle to make that judgement even though we are in a position to a centrally set forth for the courts benefit the universe of information on which it can rely that's just a reality of how the how the guidelines section of the statute work but it is a situation where the district court takes a look at it clearly says what we believe she had done in the value of it reached  different conclusion about the value of it and also i think it's baird it bears mentioning mainly because the defense raised the notion that the that out appeal relied too much on things outside the cooperation and i don't frankly have to dispute that premise because in the united states versus grant which is a decision of this court in two thousand and eleven this court big made it very clear that in the five k context the extent of a reduction might be tempered by other factors affecting evaluation that the district judge might wish to consider the context surrounding the initial sentence in value in evaluating or valuing the assistance and if that did in fact happen here then that's permitted that the district court certainly your honor look very carefully at what we said she had done determine that it wasn't worth what we believed it was at the time that she had necessarily it hadn't ripened into additional charges against anyone else that she mainly testified against other defendants it is possible that the district court looked at other appropriate contextual factors here any indication that the core looked at this well determining the extent of the five a reduction i don't believe so your honor but but having said all of that was presumably in the judge in the in the in the safety valve analysis i believe it came up again in the evaluation of the thirty five fifty three factors at the end of the sentencing hearing but i think there is an entire section in the middle of it when we took when we were talking about substantial assistance that there was no mention made at all of the death threats however i think under grant it would not have been inappropriate even if district judge had so lastly as to the issue of reasonableness this is a situation where we  have a sentence that squarely in the middle of a properly calculated guidelines range already set forth my reasons why i believe the district court committed no procedural error the district court considered the sentencing factors calculated the guidelines properly considered the defendant's arguments no procedural error and certainly where we will we enjoy the presumption that a guidelines sentence squarely within the guideline range is reasonable honest in  substantive sense the defendant cannot overcome her burden here to show that there was any sort of substantive reasonableness error and if a if the panel has no further questions i have nothing to apple do not thank you thank you length about the relevant conduct one be one and tying it back together in those cases again the people or trying to kill witnesses and they said well that's that doesn't work that's clearly a threat of violence that you're trying to escape responsibility for your fence that's clearly relevant conduct to your fence which we would say would not apply to ms wrester house page thirty reference include discussion of relevant conduct  not beyond saying that her conduct was this conduct was not relevant to the congress whole argument is in this one little paragraph here but fundamentally well no we the whole argument set out that five c one in by reference five k have these strict limits on what what disqualifies you and it has to be a threat of violence related to the offense and we were saying is this action involving mr slack was not related to the offense and so the standard by which you judge their will how is it causally or legal causation how is it connected to that offense and we saying there is no connection here this is just an angry act after the completion of the offense and after the effort to escape responsibility to the offense which is their attempt to escape she's already in custody slack is not a witness in this matter killing him doesn't do anything to impact the office with which she is charged assuming it went to that extreme that would be a very bad thing to have done if i had where it is in here is basically on these two pages that yes it's a very very bottom above footnote seven which is to the precincts reporting he talks about the disqualifying factor under thirty five fifty three of the language mirrored in five in five c one  this issue regarding ever heard slack is replicated both in here but in our of the two points under the safety valve but also under his refusal to give the full four points of a downward departure as requested by the say it's a time of year but it's twelve months of allergy season it's so that's not that doesn't immunize your decision your decision is ok once you have properly done the procedures to show you fully considered everything that would go into her sentence and then you can decide i want to make a downward departure proper notice or i can make a variance there are a couple of cases out of other circuits that sort of talk about this in this in the context of five k one saying you have to do you've got to give the departure in five k one if the criteria but that doesn't mean you have to give that reduced sentence because once you've made your guidelines calculation even counting these departures then you go over to thirty five fifty three final decision as to what is a proper and just sentence so if we were to agree with you and send this back to the district court we just pose the same sentence because you made it clear that that was the appropriate sentence regardless except he did so under a flawed analysis of the guidelines so procedural due process says no you've got to do it right first then you can consider all of these factors once we know you properly considered all of these factors now you can consider whether you wish this is a reasonable since it would pretty much obviate the issue a problem of procedural an reasonability that's even a word but that would fit within arguably that would fit within the judge's discretion so