good morning your honor as a man please the court kimberly temple on behalf of mr howard k howard mr howard agreed to import marijuana that's that conviction carries a five year statutory maximum and nothing that mr harvey said at the change of could enhance that statutory maximum that's because this court has to step test to determine what type of drugs the defendant is liable for the government omits the first part of this test and the first part of that test is critical front he was not indicted by a grand jury for conspiracy to import a schedule one controlled substance he was indicted for a schedule two the me correct correct and the government concedes that that's irrelevant to this question and if you were right that there was a bad allocution to conspiracy to distribute meth if you  right about that wouldn't the remedy be to vacate the judgment of conviction and say there was not a valid plea because otherwise you would have a constructive amendment of the indictment crime they didn't commit you would be plainer no your honor when it comes to drug conspiracy is the conviction can be based on an admission to import a controlled substance there then needs sentence a person for a crime that is not included in the grand jury's indictment well you know that crime is included in the grand jury's indictment well the grand jury indicted for conspiracy to respectfully the government concedes that what's alleged in the indictment as to drug type is irrelevant and that's because of this court's previous decisions in casares and particular facts that are not necessary to sustain  conviction that are alleged in the indictment and not admitted at the change of plea colloquy are not imply hadlee admitted by the guilty plea itself so here it is an absolutely valid conviction for the importation of controlled substances it has an additional admission from marijuana which raises the statutory maximum and that conviction itself is not challenge at all it is absolutely true that the indictment specified methamphetamine but that was a factual allegation that was never admitted to and not necessary to make this conviction valid so what we look at under ben willows about the drugs attributable to a defendant based on a guilty plea is quote not only that the court must find not only that the conspiracy involved a particular type and quantity of drugs but also that that type of call and quantity were either within the scope of an agreement or third type and quantity were reasonably foreseeable to the defendant so the government  first admission that's necessary which is that the conspiracy as a whole actually involved methamphetamine they skip directly to the second part and this court's decision into natural breach very confusing on that too because you seem to be skipping around a are up i'll try to break it down more clearly here and actually i think the court's decision in torres this past september is particularly helpful for understanding this to stop test the this this test about reasonable f ability as explained in torres is meant to determine what drugs other people were involved and that you can on the less be punished so what the drugs that your coke can so if yours is the point that he didn't agree to conspiracy with methamphetamine or there wasn't a conspiracy with regard to meth and it's both your honor he factually agreed to a conspiracy with marijuana and was not involved with a conspiracy to import methamphetamine well there was never  only agreed to conspiracy to import marijuana he agreed that there could be many of them actually on a he agreed that it retrospectively it was reasonably foreseeable that the substance could have been spotted but in terms of the evidence of record he went to victor the day of the importation into the united states and he purchased meth from victor he knew victor was in the business of selling meth correct respectfully and that's not in the times of play colloquy that's extra record facts which can be considered at sentencing within the statutory maximum but the government can see it's in footnote one that the only facts relevant to this question are those admitted at the change of plea colloquy there what was wrong with his admission that it could be reasonably foreseeable that the drugs were meth there that there  but that there's two necessary facts that he needed to admit and he did not admit to the first necessary fact that there was actually any mess so there's now but that's when you start confusing me the question isn't whether there was actually any and that the question is as you stated the first time as i understand it whether there was a conspiracy there he was part of the conspiracy and this is a mind question as i understand it not a fact question of what's happening on the ground am saying whether there is actually math what i mean to encompass by that is whether any of his coconspirators actually agreed to import math more than actually i think we're changing the focus again as the question what he agreed to they mean it as it turned out there was a bunch of meth in the car who was tragic unless you think just one person put it there it appears that there was probably a conspiracy by somebody to plant meth in the car ok so the question seems to be whether he was part of that conspiracy is that the question yes john and that's exactly why this is significant here if you look if we want to look at the totality of the facts and why the case resolved in the way that it did only a few days prior to trial it's because mr howard he consistently maintained that he agreed to import marijuana but withdrew from the conspiracy and then everything that happened after that was not a part of the conspiracy that he was a part of and so that's why this methamphetamine that was seized that's not his conspiracy certainly are under strict as somebody put it in there and potentially more than one person so perhaps there was a conspiracy to import methamphetamine but it was separate and distinct from the agreement that mr howard he had entered and withdrawn from and that's why this is particularly significant here the government you know region withdrawal before us well your hon the truck is part of this marijuana conspiracy but then it turned out there was matt your honor actually he didn't admit that he drove the truck at the change of plea colloquy at the sentencing he maintained that he did not know there was anything in the truck but the important thing is at the change of plea there was never even an admission that he drove the truck or that anything was in it and that's what's really significant here if you look at the context of why this case resolved mr harvey was always willing to admit that he had agreed to import marijuana he was never willing to admit that he was responsible for the meth and fed him and the car and that is why when he admitted his guilt at the change of clearing you can see an exchange between the judge and mr harvey's attorney about whether he was  admission was made but did not raise the statutory maximum well for me and thinking it was accomplishing something but it wasn't well no your honor was accomplishing something if you look at the change of plea colloquy the government says that they intended to argue for sentencing guidelines clear at the change of plea colloquy that the government intended to argue sentencing guidelines based on methamphetamine which they ultimately did and that the defense intended to argue sentencing guidelines based on marijuana which we all sat on your theory they couldn't have argued and the sentencing guidelines for methamphetamine based on the pinkerton notion i think they potentially could have for a relevant kind of it wouldn't have raised the statutory maximum but they could have potentially argued as the district court ultimately found that he did have at least two all knowledges actually the government didn't even argue that by the time sentencing came around the government agreed that it was only a retrospective understanding but they well then what do you say when you say retrospective understanding it had to have been reasonably foreseeable to the defendant and he was asked so it was reasonably forseeable that it meaning the drug could be swapped with a different substance and  the court asked the defendant is that indeed what you thought mr you're augie about what you were importing the defendant says yes and you agree it was reasonably foreseeable given the nature of the conspiracy and the manner in which you were a greeing to import that it could have been methamphetamine the defendant says yes that's not about pinkerton liability that's about an actual ignition on the record by the defendant to be clear there was not the nobody ever contested that there was meth ok he did contest that he knew that that there well he contests a minor role as to the p s r in fact he object did not contest at sentencing that mess with meth was actually seized he did contest that that meth was attributable to him and so the fact of meth being seen is not on its own so nothing for it to be legally attributable to him he has to have that has to have been a part of his conspiracy and seems had me if one is going to jack about minor role or challenging minor role one should at least think about hey that p s r on which the district court is about to rely says there's a mr howard he was not willing to admit to the same way that he didn't actually admit that methamphetamine existed i think that this colloquy this exchange about what was going to be admitted supports the conclusion that mr true this is miss trimble's own statements beginning on a date unknown and continuing up to january thirty first twenty sixteen the defendant was in agreement with at least two other persons to commit a crime of importing a schedule one or schedule two controlled enough that he could foresee that although he only agreed to import marijuana somebody might have put methamphetamine if that was all he agreed to do but he did not he never and so that's all he agreed to that's not good enough so what what war is there was because  more than just a warning and beyond that even though in the excerpt record seventy nine this was the court specifically asking the defendant do you agree it was reasonably foreseeable given the nature of the conspiracy in the manner in which you were of all whatever we say is our concession this court isn't bound by the government's concession on a pure issue of law second when i read the of opening a briefing politics i think with my colleague was saying was that for purposes o the enhanced sentence that he was part of an agreement and i didn't know whether it was either are or are that he was part of an agreement to import marijuana but and pinkerton admitted as much we're saying that there was actually no proof that marijuana was involved as judge with pointed out it p s or p three the probation officer cites the da seven says it comes back in ninety four percent purity six point four  what the district court judge thought and counsel for the government and defense counsel thought or is it about what this defendant admitted on the record i believe it's a little of both but what he admits is obviously the more important part here on earth and you're right i would say he admits that it's marijuana or methamphetamine and he admits that it's reasonable foreseeable that it was withholding i think you're wrong welding that i think you're wrong what is in the drug case where a pretty quantity was alleged wasn't proven a jury was never admitted they feel overwhelming and essentially uncontroverted evidence but i would also say you could roll on kong three because that's what this court did on legally sufficient and which was legally sufficient to sustain the conviction for a conspiracy to import marijuana yes but it wasn't sufficient you're saying because of the reasonably foreseeable part  i do not think that that is sufficient i mean why do we have a case well your honor for in the categorical approach we've got a lot of cases that are talking about how disjunctive or admissions do not establish the particular substance being admitted to specificity as to what was in mr howard hughes mind and he got an explicit admission as to which one it was so i think if that had been the only thing that was said we would have a different argument here today but given that we have a specific or specific factual there was evidence of the actual amount seized from the particular defendant and there was uncontested evidence about what his coconspirators had also been responsible for either one of those was sufficient to get above the statutory maximum and keep in mind also that case was remanded twice so a pretty was decided while it was on appeal and so those those amounts not being the amounts that came in there there was no reason to know that you needed that instruction but nonetheless the he did contest whether he was at all connected to those amounts that was not contested in buckland it was contested here and in fact if you look at the specific test for the fairness integrity and public record reputation of the court proceedings you look at  the evidence was overwhelming and whether it was uncontested here there is no dispute and it's very clear at the sentencing hearing that mr herrick had a defense this methamphetamine of withdrawal from the conspiracy and not being a part of the any methamphetamine conspiracy so it absolutely was contested not whether it existed but whether it was at all relevant to his personal liability and so it did affect his substantial rights and i do understand your honour's that i think the government is making a lot of allusions to me being the person who was in court at that time i absolutely understand that i missed the statutory maximum that's why we're on plane air review here but that the travesty that would happen in this case is mr howard being punished for something that he was not convicted of only due to the error of his attorney the judge and the government attorney in court not understanding the particular eddy's of the conspiracy law it certainly was agreed between the parties that he would make these admissions for sentencing guidelines purposes so that the government could make their arguments and i could make mine now but it is the time of the sentencing i gather you can raise to see either at the sentencing you know your honor and this would be outside the record as well i can in candor tell you when i realized i had