this case your honour's mr graham is guilty to six counts of harboring or concealing illegal aliens for financial gain and the district court imposed a number of enhancements that were in error i'd like to begin by addressing the unaccompanied minor enhancement the district court imposed the enhancement under two hundred one point one before applies when and minor which is defined as someone that has not yet attained the age of sixteen is traveling without a parent or grandparent and here in this case there were actually two brothers that were eventually discovered in one of the stash houses and they were just thirteen and fifteen they were actually traveling with an adult cousin of theirs no cousin the district court also mentally concluded that beast on the scale of this smuggling operation the size of it that it would be reasonably foreseeable to mr gamez that unaccompanied minor would be travelling and the district courts conclusion is essentially legally and factually incorrect first shot that standard applied by the district court was essentially really one of strict liability when the test under one b one point one is one of reasonable foreseeability now the district where presumed that because of the number of allianz that were brought through in this organization it would be reasonably foreseeable the problem is the government offered specific evidence to refute the district court's conclusions one being that the government was very intimately familiar with this particular smuggling organization as well as others out there and brought to the district court's attention there are many organizations which specialize in smuggling children or sparkling children from orphanages to the united states mr gone as was not a member of one of those organizations this was not an organization that specialized in children they also brought to the district court's attention that in the poil books which link to mr thomas is named to about one hundred forty two of the aliens none of those individuals were unaccompanied minors and finally there was evidence that of the six thousand there was no evidence presented that there was ever other than these two individuals an unaccompanied minor traveling so essentially based on the facts presented to the district court its conclusion was contrary to what the government had presented there was simply no evidence but it would be reasonably foreseeable to mr gamez that unaccompanied minors would be brought through this organization with the district court judge relied on the statements themselves to we're trying to convey was that just because of the sheer numbers it was almost like a personal application and i don't think the record supports that it looks like the district court judge a value is a number of facts  making the determination of whether or not there should be an upward or enhanced for unaccompanied minors but i think the district court's facts were in error though because they were contrary to the evidence presented by the government so essentially the district court relied on the size of it which i'm saying really there's no evidence other than these two individuals that there were unaccompanied minors ever smuggled through of the six thousand people so that does not make it reasonably foreseeable gamez the other component there were essentially basically two holdings to the district courts position was that the district court took notice of the fact that it thought that the miners based on their pictures appeared to be minors government itself said that these did not they did not know immediately that these were minors secondly as i mentioned previously they were minors traveling with an adult cousin and that's not disputed at any point in the record so was it really reasonably foreseeable as who's in this house with a number of adults and these two minors that he's not going to know that they're traveling without their parent or grandparent based on the requirements for the enhance applies to what point when do we have to recognize at the point at which he joined this criminal activity this jointly undertak criminal activity and so mr gone mrs role in this particular fans was he was the individual that would go east to stash houses and then check into the stash houses to essentially kind of check and oversee them gamez after his plea and prior to his sentencing and learned additional information from him about this smuggling operation and they believed his testimony to be truthful as well just not helpful to the point of departure now the other adjustment of applied by the court was an adjustment for being a manager or supervisor an aggravating role it just meant and essentially the government in its response brief and to the district court at the time of sentencing erred by confusing the management of assets with the management of people as i stated before mr promises role was essentially limited to procuring stash houses paying rent on those homes and collecting payments from the individual only and sponsors before their release this does not fall under the definition under three v one point one of an aggravating role that is asset management and does not warrant an adjustment  made clear by the comments two three v one point one zero that there was evidence in the record was that there the mr comes rooms have control over at least the guards at the compton house not necessarily what the district court found was it said that relied on reports of investigation which are in the sealed axert of record as the basis for its finding that mr graham has had control over the guards and that was based on the statement of the aliens but at the time of sentencing the government pointed out to the district court and said look we understand why the district court can maybe see why the ambiance said that mr thomas had control over the guards or they perceived that he had control over the guards but based on our investigation the government's investigation that is not the case and that's what e r two thirty five so essentially you have the district court relying on the aliens perception but you have the government stepping up and saying look based on our investigation that is not the case that's not true he did not have a supervisory role over the guards he was just a midline employee in this organization played no managing role played in a lower level and therefore the aggravating role enhanced it was not appropriate increased just so i understand your argument the government's argument that you can rely on who's being a property manager who's wrong correct what they had to show was that if the defendant was the organizer leader or manager or supervisor of one or more of that are participating and you're saying there's no evidence of that that's i'm saying that just your court relied on the statements of the ambience to make that conclusion but the government raised the point to the district court we understand why the aliens may have perceived that but here's our evidence are factual investigation and that is simply not the ca and then finally the last thing i would note for the court were requesting that the sentence essentially be vacated and remain and it was there was much conflict and dispute over what occurred in regards of sexual assault and substantively reasonable i think what i'm trying to say is there were so many disputed versions woven into the disk ports and imposition of enhanced meant that the district court needed to resolve it and stick with it one but he did say he said ok i'm going to accept your version that it didn't happen at the house it happened at a hotel but he also adopted the district court's version of the aliens by overruling the defense attorneys objections and saying i overrule it in its tiredly i find it sufficiently and that version with it happened at the house he seemed to me that he was trying to figure out exactly what happened he listened to both sides and he said well ok the vet really did happen the question whether it was consensual or not i'm crediting you mr thomas or is that it happened under the way you said but there's no way that i can say that it was you know not a you know it was voluntary in light of the power and control that you exerted and i just don't know how that is and we can say that that was an abuse of his discretion or unreasonable or somehow resulted in  me so even if it did happen in the house and she went there i mean at the hotel the situation is inherently coercive so i'm going to phone and nonconsensual but by crediting his version he's it happened at the hotel it was corrosive the coercive component that was based on his research of alice hill which was never presented to any of the parties and then he makes this conclusion and  may please the court carry only on behalf united states your honor the true issue before the court is whether the district court clearly erred in this determination of the facts and it did not the facts here in essence were largely undisputed the question that then arises is one of those set of facts reasonably foreseeable to the defendant in terms for example of the unaccompanied minor adjustment again that is something this court reviews under the clearly erroneous standard of record the record reflected that that the record reflects of the government told the district court it was not reasonably foreseeable to this defendant that he would know that there would be unaccompanied minors in the compton location the government did tell the district court that this smuggling ring of which defendant was a part did not specialize in children and did not for example take children out of orphanages now at the same time there are other facts in the record that show that defendant it's not reasonably foreseeable and it used a large numbers as defense counsel pointed out it is true that in the polio ledger books of the hundred forty two alien names attributable to defendant none were minors the government pointed that out to the district court so that really actually it's a direct knowledge as opposed to reasonable foreseeability and the government isn't arguing now or then that he had direct knowledge and the government now by the terms of its plea agreement is allowed to defend the district courts of termination to support that is correct sure but it went beyond that move opposed it did your honor having sound basis for doing your i can't speak to that i wasn't the underlying prosecutor i think in terms of negotiating the plea agreement there all term all sorts of prosecutorial discretion and management decisions that go into that i don't think anything that the government said at the time of the district court hearing precludes this court from finding that the district court did not clearly err there is evidence in the record that this was a large ring there is evidence in the record that at the one location where the defendant was most present the compton house location there were two unaccompanied minors and accompanied by a parent or grandparent there was also a clear finding by the district court at your fifty four but there was an absence of any evidence in the record that there was some system put in place to make sure i'm accompanied minors would not be smuggled right but it was a government order went to the district court true but the reason why i say that is because the other facts in the record show clearly unaccompanied minor children at the location with which to find it was most familiar no system in place to prevent unaccompanied minors from being travelled smuggled in fact defense counsel at your sixty three even made the concession to the district court that it was foreseeable that in a smuggling operation of this scale minors would be smuggled sure it was i do agree with that so he conceded a he wouldn't concede b which was that unaccompanied minors would be smuggled the opposition seem somewhat logical but there is on the record in the record sufficient and you present the opposite theory that bothers me i don't want to buzz everybody else but i would hope i would probably graeme it that it is an uncomfortable situation to be in but i think based on the facts in the record this court standard of review clearly erroneous with an overlay of abuse of discretion it is the government's position and perhaps these adjustments were close calls to government position that we should overrule the government's position it's the g district court was right and the government was wrong well i don't i don't think that's technically correct i think what this court would be doing really always bothers me you know whenever there's a constitutional argument i'm curious to see it's technically correct because what this court has to decide under hanks and in cases like hangs in is whether or not the district court's application of all three of these adjustments was illogical implausible or without support in the record  the arguments that the government made derive from essentially the same large set of facts here that are undisputed the government made arguments below that the district court firmly disagreed with and to me it is very difficult to say that the district courts and now recess of those facts was illogical implausible or without support inferences that may be drawn from facts in the record and that's a quote from hanks and it is an uncomfortable position to be in your honor and it's not a position that any prosecutor likes to be in but we have to look at what are the clear facts that were before the district court what were the arguments made and then did the district court error did he make a clear mistake in determining the set of facts he did not there is no dispute these were unaccompanied minors there was no dispute defendant was most present at this compton location there is no dispute that there was no evidence by defendant or anybody else that this was a rin coconspirators harbored undisputed unaccompanied minors and there was an absence of evidence that this ring had any sort of preventative measures put into place so the government relies on that fifth circuit case in regards to the role enhanced may again as an initial matter under this court's precedent and united states versus small donato that is something this court reviews for clear air the government and its answering brief misstated  analysis by focusing on no two but what i will point out is that the p s r properly stated the analysis for the district court that you looked whether or not this defendant supervised one or more guard and then you look to the other factors and know for as to whether or not this was an organizer or leader and that is what the district court did at the time of the hearing and you can see that at your fifty five here the p s r and the court were clear that the defendant directed at least one guard  was in charge of finding and organizing drivers in other words recruiting accomplices that the defendant obtained rent of the stash houses that goes to his participation in the scheme and the court then applied a plus two adjustment defense counsel points out that you are twenty five the government somehow told the district court to ignore the aliens perceptions of the defendant being a guard but that's not explicitly what the government said the government said my understanding is what this defend and what the investigation reveals that this defendant did would rather that he would rent the house if he would come to the house with a check a periodic plea and in that sense he oversaw the guards i do think he was at a higher level than the guards i think the defendant would admit that he was at a higher level than the guards so the representation about york to thirty five put forth here today is somewhat inaccurate and there is clear evidence in the record that the defendant oversaw at least one guard and that is sufficient to support the plus t adjustment that the district court applied this further further argument in their brief that the district court somehow aired because it didn't engage in an on the record comparative analysis it's the government's position that for that plus to enhance man no such comparative analysis was needed because he supervised one or more cards moreover to the degree that there is some comparative analysis required under rojas milan which actually examined three b one point two which sort of in the structure of three v one point two has more of a requirement of looking at relative culpability here the district court applied the lowest level a district court judge prager said and when he looked at related defendant sanchez lopez applied a plus three and that was flat and the government pointed that out to judge otero in this sentencing proceeding he applied a judge progress and applied a plus three because sanchez lopez had more discretion in his ability to greenlight and presumably if the elusive honda who defendant relies on was ever caught then a plus for would have been applied to him but as an initial matter there doesn't need to be an examination of relative culpability here he supervised more than one guard he recruited drivers he organized them even the government told the district court he was at a higher level than the actual stash house guard ordered thank you you're more of a member thank you  this briefly in response to the concept of an operating system being in place i think the fact that there were six thousand smuggled only two of which were unaccompanied minors reflects the fact that there  be made there was an operating system in place but this was not an organization that smuggled unaccompanied minors and therefore it was not reasonably foreseeable thank