good morning your honor jason hit on behalf of the united states will start first with rodriguez giving mr dallas his preference i'd like to reserve three minutes for of a bottle if i may ok the district court in rodriguez aired your honour's because he granted a sentence reduction motion for rodriguez where it had no jurisdiction to do so under the two step approach of dillon if the defendant is not eligible the district court is without power to reduce the sentence here the undisputed portions of the p s are for mr rodriguez demonstrate that amendment seven hundred two did not or does not change his guidelines range and therefore he was ineligible for a reduction the failure to object to the p s r as mercado merino teaches us establishes that the assertion eligibility but even if supplemental factual assertions were needed there was no dispute for the district court and there's no dispute on appeal can i ask the question i know there are some issue about whether or not the judge adopted the find  r normally a judge does a statement of reasons i know in your transcript you make reference to the statement of reasons did you have the statement of reasons available to you they are under seal and i believe if i did not i would be happy to submit these but i believe we submitted them with the excerpts of record but there submitted under seal because they are not public in our head because i could write behind them but in the statement do you have did you see this statement a reason i did when we were doing the district court litigation the probation officer  pares packets for both parties in the court and it includes a statement of reasons as well as the right and in the statement of reasons roman numeral number one is the court findings on pre sentence investigation report and the judge makes a decision whether he adopts the pre sentence investigation report without change or whether he adopts the pre sentence investigation report with the following changes did do you know what he says in the present investigation  adopt him without change yes he does he does ok the the kind of elephant the room here is set at the time that the judge was making the decision both in this case and the others it didn't matter was whether it was you know four or five or six i mean i'm just making up numbers didn't matter but it's kind of like what's been said so the question is is it clear from the case law that we nonetheless rely  rest there is no specific finding from the judge you know and hike her but that it was x amount on the what exactly do you says about his reliance on the p s r whether it's the everything in it i mean downton the new show or whether it's what matters initially at the time that he accepted it is there any case law that directly addresses that question i think  position that it doesn't matter whether the judge purports to accept it all that matters is there was no objection i think of what the judge did except in this case and that is important they have to accept the facts of the of the r and if there's no dispute that they become factual assertions that can be relied upon for this i believe if there was just no objection i mean the way that the case appears on the surface without going to other documents  that the judge that there was no objection and the judge simply went sour if i m reference in the sentencing transcript to the judge at the outset i believe of the sentencing the judge does say i accept and i want to make sure i'm being accurate in this case so he  they deal with this objection to the criminal history but in that in this case the district court adopted the sentencing guidelines are set forth in page six of the p s are found in offense level thirty five and went on to calculate so there's no where there that he adopts the dru quantity i did so in your brief you said that the district court adopted the findings in the p s r and you cited this page thirteen but i don't see any it adoption of the drug quantity on this page so i guess that's a that's fair it isn't an express least x or i could have adopted what actually was and either way he gets to the same place as for the guy thinks calculation right correct so it's not true that it's an inevitable inference that he adopted the actual amount as opposed to the amount that matter i think because there's no objection to the amount and in the factual basis for the guilty plea which the defendant admitted to under testimony you have a quantity far exceed but even in the actual plea it's kind of cagey i mean so it's not like serratia where he admits to the amount that's found exactly he has this there's a statement about what's found and then under it it says and it will be tested and for all and there's a lower amount it has been tested and it's a lower amount so i don't think it's clear that he admitted to the amount in the same way like if you look at it looks different i think it's not as as clear as sorabji about it you're fifty six in the factual basis online sixteen through seventeen he does admit under oath a subsequent search think at the bottom what you have there is just was i was alluding to earlier what mattered was fifteen hundred grams at that time and so there is an admission just as in recovery mode to the to the sea floor not to the ceiling but this all reminds me of what the the various reasonings underlying the categorical approach and the question of whether you can rely on non elemental colloquy for example and the answer has been no and the and the reason for the no is if they don't matter they're not actually elements of the crime then it doesn't there is no functional admission to them even if there is a verbal admission to them because they they're not relevant to the question of what he was convicted of right and this seems to me to have the same aura and if if we're caught in marino says that the judge's findings are sufficient i mean even that makes me uncomfortable but at least we have to be very scrupulous about there being such findings because otherwise you have this problem of people you know emitting to things because they just don't matter and i think mercado merino addressed the situation where it didn't matter in that sentencing at the original and supplemental finding was permissible here in the eligibility inquiry there was no dispute made in the sentence reduction motion by rodriguez that the amount was incorrect there was just an assertion that you should rely on the more vague provision in the plea agreement and judge prison's point is a good one that if you can't have it both ways either the factual basis in the police is there and we rely on it or you rely on these vague sort of after the fact analysis and it i think the district court is trying to let me say actually where mar court to page nine fifty eight there's a discussion in the application of the framework that's laid out by the court in the particular case of mercado merino and in the sentences i'm looking at it starts defendant did not object at sentencing to the p s r's assertion that law enforcement seized approximately forty pounds of methamphetamine solution from a methamphetamine lab on april twelfth two thousand and four based on defendant's failure to object that factual assertion is accepted as true and then footnote eight goes on in greater detail with the few with case i so i guess we may still have a debate about what the police actually means because of the two paragraphs or can i ask a different question so say you say we were to agree with you  well it's to say we don't think it's that clear that there was a finding originally i'm wondering if the judge made sort of a different problem a different error at that point because it seems like the district judge thought if there wasn't a finding originally that and there never can be and i wonder whether if the answer if we don't really agree with you all the way but we agree with you hartley the answer here is that we need to remain and clarification that if the district court wants to make a drug finding now the district can i think that's fair i think the error that that occurred in rodriguez's case is that the district court didn't have the benefit of  merino and i think he was very candid in both transcripts saying struggling with i don't think i can do that and that seems wrong right haven't we said that you actually can i think he was not sure and certainly other circuits had and that was sort of the debate going on and we had a few district judges in our district going different ways so i think that is an error in to the court's point if if there is a remain and it would be consistent with mercado merino to do an eligibility inquiry at the outset ok thank you thank you authority to make supplemental findings when initially it was ambiguous and didn't the district not understand that here the district court did not have a merino it did have the district courts a cost a position that basically held sensually the same is recount of merino i was arguing at the time that the district court should just accept the specific findings it made over at least over fifteen hundred grams of actual math and the district court went my way but it seems like well it seems that the district court thought that if the district court had not really made the finding originally that it couldn't make the finding now and it seems like mark to market a marina says that's wrong so it seems like if we if we do agree with you that the finding wasn't made originally then i don't we need to re mance of the district work and think about it more and i mean maybe the district will not it has broad discretion back up again about kind of marine i i must everybody else seems to think there is one thing in here and i'm now wondering about th seems to sept that something that's in the p s r but not specifically articulated by the district judge can count do you agree with that much it has some broad language that it but then it's and it seems to say even more than that because it says it doesn't else i think there's language that the district court may accept if there's been no objection i don't think it's required to and it's important in this case but the gist of credit what i'm saying is that maracana moreno seems to say it's enough accepted well because so because in this particular case to district judge said he said and believe in the serratia case directly before this there when he himself adopts adopt guideline range or even adopts the crease in short he's not intending to adopt each specific paragraph or a specific finding well can i ask a question because he in when you guys go back for research and saying he he he says  i don't know anything more specific but my recollection is this case was pretty straightforward it was a negotiated plea agreement and he goes into the fact that and in the plea agreement it goes into the facts as the government has just indicated that he was and the defendant admits that he was stopped with eleven pounds of methamphetamine the judge didn't make a specific finding  disputed back and forth it's in a separate paragraph it's at the end of the factual basis for the plea and it says the methamphetamine and the defendant's position on january twenty first was laboratory tested and found to contain over fifteen hundred grams that's not a finding of the amounts the defendant had it's a finding that it passes the bar fifteen hundred grand that's absolutely true but if even if you accept that the eleven pounds of methamphetamine in his vehicle that he possessed that does not get you to a level thirty eight you only get to a level a thirty eight and mr rodriguez says if you also adopt the specific finding of the purity of the drugs and the d n a test but the point is that that's all there by all of the agreements that have been entered into the lab test doesn't dispute that but there was no reason for him to contest it because the amount was only one point five kilos or more so let's say maybe instead of being four point eight the lab test but if it was four point four what if it was you know maybe five percent would have been he didn't dispute he didn't dispute it because there was no reason to dispute it well so then why why should the court if all the court has all of this and the court accepts all of this and there's no you don't as a judge a person just mentioned you don't there's no dispute raised by the defendant then hasn't the judge adopted all of these facts as he's been given he specifically said he didn't adopt all the facts and if the court as for further findings i think you could take the position that erring on the side of caution which the court is so it should do that it's not proven by you i'd like to ask about this question the judge person asked as i think maybe i had some confusion about this i thought it did matter what the judge thought about the drug quantity but do you have authority for that because if we have to just say if it's in the past are not objected sentence in context it's really only it's a little vague but it only meant in the context it was adopted yes that's my position my position is in this case where judgment is specifically says he's not adopting and maybe some judges take the position that they do but what he specifically says i'm not adopting that finding at worst a court should remain for further for further findings and then in that case the court would have the position of deciding under the context of all the case the evidence before mid sentence saying he didn't find it sufficiently reliable to find more than four point five kilograms of actual math but so would he have to i interrupted you when you were talking about the quantities w judge in order to make a finding that was favorable to your client have to question the amount this five hundred grams that the lab testing was would he have to doubt that what would what were you saying about he'd have to think the instance then you get below the four point five kilograms of actual math i think when i was calculating last night it's about six percent over four point eight to four point five so i think the court could say erring on the side of caution management where i'm sorry where what page of the e are has those numbers you're talking about and i was looking at the factual basis for the plea but i think maybe i'm looking at something different than what you're looking at so the only there is nothing in the factual basis reference to what the d n a lab report says well and and that was in the the pre sentence investigation report says it's paragraph eleven in this case the defendant possess the four point eight kilograms that were in his vehicle he also had one hundred eighty six grams at his residence while the overall conspiracy involved much larger quantities his relevant conduct is limited to these amounts and then  its stablish is a base of pencil level of thirty eight cents a defendant possessed four point eight kilograms of methamphetamine in his vehicle the one eighty six grams of meth mixture is of such a small quality it's not included so where does it say anything about it tested paragraph five on the page page four that's what that paragraph eleven is relying on that when analyzed by the da laboratory the substance with determined that contain four point saying which is it's still saying four point eight kilograms of actual math actual math is actual math where does it anywhere talk about four point five well so four point five is the level that you need to get an offense level thirty eight now and in the current guidelines my position is that the four point eight is close enough to the four point five that if the judge wants to rule on the error err on the side of caution in favor of the defend that he may decide on two to say that it's close enough i'm going to err on the side of caution and not say that that sufficiently reliable to find over four point five where might have been a little bit less than four point five i think but you're not disputing that it sets when  i analyzed by the da laboratory the substance was determined to contain four point eight kilograms of actual methamphetamine that's what it says and so you're saying that if it were manda back he might make a finding of less even though the lab is that it's four point to finish but to start where we left off i think that when thing i want to make clear the idea that was advanced by counsel would be inconsistent and not permissible under mercado merino that is a remake and where new findings inconsistent with the original sentencing are made really well it says that in the in the decision that doesn't take that is that what that said i find the opinion very mysterious i've been staring at it for the last ten minutes and says however the gist of course supplemental findings may not be inconsistent with any fashion a determination is made by the original sense in court and it infers that there was a determination made but but then it seems to say be of two minds about was there was a finding made with regard to the that but the question is what is the status of the fact that there was no objection i know as you know yes there is a sentence says says that you can't contradict whatever  made but it seems to be of two minds about what findings were made right and i i guess i'm interpreting findings more broadly than than the very specific that we started with in my opening argument which is the judge says i find the findings for thirty five eighty two purposes includes undisputed portions that are adopted at the time of sentencing and all but if that's true then why are they so why are they saying that there has to be any further proceedings at all only if it was unclear ambiguous is where the well  seven where they're building the framework and what they say they're in laying out what can be relied upon for the categorical approach for thirty five eighty two proceedings is the for example the trial transcript can be relied upon the sentencing transcript portions of the pre sentence report the defendant admitted to or the sense in court adopted the next sentence is the critical one and it may accept as true any facts in p s r that the defendant did not have a way to but the question is whether it has to anyway thank you very much i'm going to have some more chance to talk about sourcing in fact if