respect to today's argument in a limited time we have there are approximately four major issues that i believe the court should be looking at first of all does the decision is amy and offend crawford and bowl coming which came after does the fact that the ms amy and test applied in this case or put differently doesn't as a mean case implied in this case show that the defend it was the declarant or that the interpreter was regard to special skill with regard to the as a me an issue and to hit that squarely the government takes a position in the same is binding on this panel and previous decisions of this court have indicated that until further instruction from the supreme court is supreme court made made it very clear that the supreme court's present concern with regard to the cross confrontation clause is that these courts not apply tests of reliability like we do in hearsay in determining whether or not to admit a statement that is essentially one that is made out of court without an opportunity for fair cross examination but lopez testified lopez testified but the problem with lopez's testimony was that if we were to accept something sometimes the office you know they go they travel around the united states and they're not always in the same location and they're not available then you might never have a good confrontation clause initial argument but he was here and testify what what you cross examine him regarding what he did and what he questions he asked we know that he asked his own questions we know that he participated in the interview why i don't understand why that's a confrontation problem here's the problem first of all notably the government wasn't even initially going to call lopez but then they decided he did he was there he testified to what he testified to was that he did interpretation for the interview he participated in it he made no notes he made no record he had no recollection and this is particularly important they're not allowed to record that's a different that's a think that might go to his credibility was i don't see the how that goes does to a sixth amendment confrontation and with respect your honor it's not a credibility issue because he didn't even go to review the report that was admitted and he didn't review the notes that were taken if we were to look at this other than is amy in sort of a reliability issue or even under the crawford standard there is no reason why this statement should have been admitted from a witness who did not recall what occurred this is a tantamount to bringing a witness in a court and saying what happened in the witness saying i don't know and say well you previously gave a statement i may have given a statement but i don't know i was no exception to admit that statement in that fashion i think you have a through all four of the factors and we would find that he was provided by the government that he was actually actively into interrogating the defendant and even if as the government suggests the central two factors could go either way the fourth factor was the government claims which is  the action subsequent to the statement if you look at the reply on pages twelve and thirteen there's a whole list of things that were inconsistent the defendant denied making those statements that he was misinterpreted there's nothing in there that where the defendant validated what the interpreter said which is really the kind of subsequent action that they're looking for so this was not a statement of the defendant this was a statement of the interpreter the interpreter was an active agent an active agent who prepared no reports kept no notes had no recollection there is no opportunity for meaningful cross examination and this is all one and this is talking about it concerns them around and marshall had but also concerns that were raised later there is no opportunity for any meaningful cross examination that would assist the trier of fact in determining credibility or determining reliability of that statement because there are no details available from the person who made it it should have come in for that reason i mean doesn't that suggest a lack of credibility when he didn't when he didn't record what down what he wrote what he asked in the answer there's really no basis for a trial or a fact your honor to come to a conclusion that there's a lack of credibility because the government proposed well here's and reliable agent who's sitting here writing everything down which would have been fine if you had looked at things like if you look at oren hegde there's an example in or in hague where they're gathering marijuana plants and it was it was on the issue of whether that the numbers they had admitted should have been admitted those agents who went through the field and checked for the marijuana plants counted marijuana plants watched the agent write down what the number they gave harmless here if we're talking about harmless error it absolutely wasn't and the reason is this the defendant denied making the statement with regard to the first statement he made to monaghan but he had a lot of other posts those statements sub conversations are very compelling i wasn't really happy with those but you're right frankly with regard to the there are very very there were there were actually there were sexually three things he did he gave a statement to monaghan elope as he gave a statement to the customs officer and he gave some statements to people over the phone with regard to the statement to lopez and monaghan he denied that he had said anything incriminating and subsequently when he gave a statement in writing to them his written statement contradicted what he had told contained details that they did not tell them and basically said he'd been threatened and he begged off when he makes a statement to customs he vehemently denied that he had told the customs officer that he had done this before that he had done this into exchange for money he denied all that when he testified and then when he when he makes calls from the jail the the supposition from the fact that he testified that he was threatened is that if he was talking to the people who supposedly set him up which was his position in this matter that they must of load the truck at his place of business it makes sense and it made sense of their trier of fact and we argued as best we could that issue because he didn't want to comment on those calls at all he made no comment but it would make sense that he would want to get himself in deeper in places family at risk so as far as arguments to be made in the weight of the evidence yes the government had a number of statements he made but all of it all of it was explainable that very first statement was the most damaging in the sense that that was the very first time he talked to the agents and allegedly told them that he had been paid extra money to do these deals that he was getting money from his from his employer and he would get extra money when he would drive loads across that he suspected had drugs so his statements that he made on the phone you know they record jam they were admitted into evidence those are admitted evidence ye entirely consistent with someone who's trying to not irritate the people who apparently set him up for a drug transfer if that's what happened in one of the agents testified in fact that if you were going to set somebody up and this was there for sale expert if if you were going to set somebody up for a mule transfer a commercial trucker is the perfect guy to use because you can hide that stuff anywhere in the truck and he's not going to know it's there and he's going to go in where you tell him he's going to make short runs as in this case he's going to make his drop and you have total control over everything so that was the concern that we had with regard to that i want to move because i think i'm pretty short on time i want to move briefly to the two level hands but because i think that that is a real problem the problem with a two level enhancement that was applied for special skills is that it ignores the two factors that the court really supposed to emphasize one the difficulty with which the skill was acquired and there is no evidence that this choir the skill was dead was difficult to acquire and that's united states versus li and also whether it is more than the offense requiring a special skill to accomplish as opposed to somebody who actually was possessed of an extreme special skill and that is united states versus green both of those decisions from this court say that the district court mis applied the two level enhanced but and it mattered it mattered in this case because the district court although saying she was going to the district court gave a variance in this case if you look at the case law it is required that under mendoza under mendoza where we previously found a trucker to have a special skill that trucker was found to have had a long history of accident free conduct and there was a record on that and that's what the court relied on but if we go by the standards that we're supposed to accept in this case there was no evidence that this was a difficult made a note of the nine or ten weeks school which compared to doctors lawyers architects pilots all the things that the guidelines list as being a plausible for that to level enhanced meant it's nothing i mean we don't get law degrees we don't get doctors degrees we don't get architects certifications in nine to ten weeks of trucking school it's not a difficult skill to acquire the mendoza case was one where they had somebody who was trucking large amounts of stuff and they felt that he had a long history of trucking no accidents this guy's driving a truck that got damaged because apparently somebody messed up either him or someone else messed up in hooking it up and smashed the rear differential in as when there was any record on his history driving his commercial truck there was none other than his statement that he'd been driving since he was fourteen but the acquisition of the skill and how difficult it was to acquire is what lead tells us we should be looking at and keep in mind that the issue about whether the trucking skill was required to commit the offense is not the only inquiry the emphasis isn't is on more than it just required a trucking skill this actually minimally required a trucking skill this could have been done in a car it just happens that a truck was being used because this was like seventeen seventeen kilos or fourteen kilos of methamphetamine it could have been put in the trunk of a car in a tire of a car or anything like that he didn't need a trucker to do it they were just using the truck or because of the pattern of crossing and because of the opportunity to drop the vehicle at a warehouse have it unloaded and bring it back possibly because they didn't want the driver to know what he was carrying but it had nothing to do with his skill at driving a truck and that's the concern in this case is that the district court misapplied that with permission i'll save the rest of my time it please the court right now are sick for the united states we're asking the court to affirm the conviction and judgment in this case because the district court properly exercised its discretion in applying this court's precedent from  and what i don't want to have get lost in this discussion is the standard of review in this case i think that the district courts determination under newseum in is ultimately reviewed for abuse of discretion but the factual findings on each factor is reviewed for clear error and so even though in hindsight there may be reasonable minds may be able to disagree about some of the inferences from the record i think the record is definitely supported that the district court's findings were not the logical or implausible or without support inferences and specifically looking at i think the factor that mr jacobs has raised is that and we acknowledge that the first factor that tested did weigh slightly in favor of the defense just likely doesn't it to substantially in favor of the defendant so there's no question that the officer what was his interpreter in fact no training as an interpreter so how can we fairly say that the words are those of the defendant here when we have a government agent not only he did us among his own questions and he did fess up to that and that was the district court was aware of that in making its findings but i think the bigger question is on the second part of the test whether that means that because he was asking questions that mean he had a motive to mislead or distort and i don't think that that's a proposition that just because a law enforcement officer is asking questions in an interview that means that officer has a motive to mislead or distort and in this case it's actually interesting because the i think there would have to be something more to show that there is an actual motive to mislead or distort and there are a lot of cases where the court has noted that the interpreter was actually like a c i or a coconspirator and the court routinely finds there's no motive to mislead or distort with those individuals which seems to me there's a pretty substantial motive to mislead or distort that we could come up with in those cases and so just because we have a law enforcement officer asking questions i don't think that necessarily means he's as a motive to mislead or distort the translation in fact in this case agent lopez  tried his best to provide an accurate translation and the other thing that's interesting is that this was the at least in our view the least incriminating statement that the defendant gave it was probably the weakest of the government's evidence in this case is as judged by as pointed out the jail calls were extremely compelling there was the interview with officer months where that's officer meant he could basically sitting at a computer terminal across from the defendant who speaks spanish and he's typing in the defendant's answers and that's where he admits to having crossed the narcotics on eight or nine previous occasions so there was much more compelling evidence in the later statements where agent lopez was not involved and so if if we are trying to look for some motive to mislead or distort you would expect that that original statement would be more incriminating that that the agents would've he would have distorted it in favor a suggestion that the defendant knew there were drugs in the car and that's not what the statement was it was actually much it was actually semi exculpatory that first statement and so on that second factor again the question is did the district court clearly  in finding that there was no motive to mislead or distort and we think that the record does support that that finding under the third factor the mr jacobs essentially concedes that agent lopez spoke good fluent spanish that's not really an issue and then you get to the fourth factor which is the subsequent action and that's where those other statements do come in and they are they're very compelling they're much more compelling than that first statement in some ways when i was looking back at the record  preparation for for the hearing i thought maybe it's almost a stronger case without that first statement because it removes some area for the defense to kind of exploit and muddy the waters so to speak and so the case is extremely strong with those subsequent statements that go beyond being just consistent they're much more incriminating and that's what the district court found and so i think under the the standard of review that is deferential that there was no clear error and the court properly exercised its discretion on the as far as the confrontation issue we as the court pointed out agent lopez did testify trial so we don't really see this is a crawford issue as much as an owens issue and that's whether he had the defense had a i suppose an adequate opportunity to cross examination  and i don't think mr jacobs gives himself enough credit he actually had a very effective cross examination he was able to point out that agent lopez was not a certified interpreter that he did not review that his site agent's notes that he didn't do his own report that he actively participated in interrogation and that he couldn't remember much about the interview and as the court pointed out i'm not sure that goes necessary to credibility but it does go to the weight to be given to that statement and so much so that in the closing argument the government actually had to more or less concede that it was it was fair to say that something could have got lost in translation with that first statement because mr jacobs did have a good opportunity to cross examine agent lopez and was able to point out why that statement should not be given very much weight and we had to acknowledge that but with the other evidence as the court said it was very compelling and so under owens we think that was a that was more than adequate opportunity to cross with regard to being a commercial truck driver we made the argument in our brief that really at the end of the day it didn't matter because the guidelines were so high in this case that whether the court applied that hansen or not it really didn't matter and one thing i i we neglected to point out in the brief is that under actually under the sentencing guidelines section five g one point one it provides that when the statutory maximum does exceed the actual guideline range or excuse me when the guideline range exceeds the statutory maximum that the maximum becomes the guideline range so in this case the statutory maximum was two hundred forty months and with regard to the enhancement we're talking about without the enhancement it would have been two ninety two to three sixty five with the enhancement it's three sixty to life and so those were essentially it didn't matter and the district question it's actually just did the district court properly calculate calculate the guidelines and here i think that this court did do that because it started at two hundred forty months which was in fact the guidelines sentence so there was out there actually was no procedural error in calculating the guidelines even if the court may be misapplied that handsome and the court started at two hundred forty does the hanson really apply in this particular  truck across the border well i think i mean i think reasonable minds to disagree about that your honor i mean the record was that he had quite a few years of experience driving a truck and in his testimony mr castro's testimony he said that he had been driving the there were two trucks for this company the black truck in the white tripe and he had been driving the black truck until the white truck broke the differential broke and that's where the compartment where they put the drugs and so he took over driving the white truck and he said because the other driver didn't have as much experience and he was told to be you know cautious in driving the white truck that he could only drive it couldn't drive at high speed and that sort of thing and i think there is something in the record where he said when he went to go pick up the trailer before crossing in this case that he had to get on the freeway and so i think there is some evidence that he was you know he's driving a truck that has a broken differential that apparently the other driver was not experienced enough to do but he was and that's the compartment where they put the drugs so i think