expenses and profit for each trip compare that to hypothetical jobs the court believed mr delgado could have worked and essentially decided that the offense didn't seem worth it so the court speculated that mr have got mr delgado might have quote had a piece of the action or played a larger role than a courier the problem is that there is nothing in the record that supports that speculation or those assumptions mr delgado at his sworn pro that he offered detailed information they didn't permit a one billion dorsett in terms of getting the safety valve they just said they were going to oppose it if the government said that they were unhappy with the level of detail because he was not able to provide i think names of additional people st and last name to the government can investigate but the government did affirmatively say that they could not establish that he had lied and that they believed he had told the truth the told the truth sufficient for the safety valve production in wasn't that the theme of the the district court's position that they thought the district court body was lying but they're just the dish of courts reasons for doubting his credibility was all pound up with the speculation and one of the major reasons that the choir the court didn't believe him or indicated they might not believe him was because the court he could have worked these other hypothetical jobs and made almost almost as much money but there's nothing in the record that would support the speculation that he devoted any additional time to trafficking or made any additional money from it the p confirmed that he had had the same full time job at a retirement community since two thousand and five and yet the court assumed that mr delgado could easily just work additional hours at that already full time job or to go find some other job at ten dollars an hour to fit and then with that why would that be a sufficient grounds in and of itself to did not the adjustment because the burden is on the defendant to get the adjustment the defendant you know and the defendant puts forth only as statements and not detail statements at that for the government and in the court looks at those statements and says well you know what i don't believe you and therefore will stop the nile why is that error i think if the court had said only that and we had not pushed back for any additional explanation and that's all we had was the court saying you know you haven't persuaded me that this is true that might be a more difficult case but we have here is additional court explaining why he decided not to believe mr delgado and that is shot through with speculation  unsupported by the record this idea that he could just easily go out and make three hundred dollars doing something else which i think it's just just not a real world based assumption and certainly is not there's nothing in the record that supports it more why wouldn't be harmless i don't think the record is clear that that issue would reach the same decision and i do want to talk about so i think the the same case from the th circuit on the speculation issue was helpful in that case it was it was similar to the sentencing sentencing decisions based on speculation that if it was involved in some kind of undisclosed scheme or some some undisclosed offense the van case from the stick circuit the bradley case from the th circuit in all those this situation i just don't believe it i don't truly are you're not credible to me ok and then makes a credibility finding in dismisses and would not dismiss but then denies the adjustment what would be the problem with that and i have a two parter what would be the problem with that generally and more specifically would that elite would that we move the court's burden to conduct any sort of guideline commentary factor analysis because there would be no universe of facts and this is sort of parroting the government's argument in part but it but the argument has some plausibility to it there would be no universe of facts upon which to do such an analysis because you determine is just not credible so  the bottom line is putting aside the speculation issue for a nd if the court it just said i don't find you to be a credible witness therefore i'm not going to give this adjustment because whatever universe of facts you've given me telling me what your role is and you are the only evidence for that role i don't believe it is difficult to put aside the speculation because of course the date the court did speculate here i think there wouldn't inherently be a problem with additional court making a credibility challenging that but of course that's just not what we have here we do have additional court giving a fairly extensive explanation that was shot through this with this kind of inappropriate speculation and i do want to talk about the nd inappropriate thing there it's like an improper thing the court did also discuss quite extensively mr delgado decision not to participate in a controlled delivery when he was arrested as a reason to deny their minor role reduction i think the record is clear that part of the dish or court decision there was that mr delgado simply didn't deserve the break volume three which is during the sentencing hearing the court asked whether mr delgado had quote offered up information during his profession noted that quote defendants who want to obtain these sorts of adjustments in their role i think sometimes they do step out and they take the risk of assisting with control deliveries or providing other information the court then went on to state that even if they assumed mr delgado didn't actually have any additional information to give quote it doesn't seem to me that he ought to get the same kind of break as those who do put themselves  indicator that me have been more involved in being just a mule and therefore he was unwilling to cooperate and that was sort of the theme from the government's statement as to why he didn't give details why didn't he give details if you know he was just such a helpless mule we didn't know any raise and the judge has an opportunity to explain and the just exactly that no i don't it's supposed to work i don't think there's anything wrong with that except i think now what we have is two conflicting statements because they don't think that's actually a fair interpretation of what the court earlier the court earlier  clarified what you said earlier right what are we supposed to do with it i didn't really mean that this is what i mean except the court didn't say it didn't really mean that the court said to be clear we're now i'm just using this to judge his v but the earlier statement i think was quite clear that he was looking at whether or not mr delgado deserved a break and the core takes that on the table for the proceeding what basis is that for and i still think that there i still think two conflicting statements i think don't make a clear the boeing case out of this court and then a case out of i think the th circuit and one from the th circuit where the same similar sort of thing happened where that issue of court relied on one inappropriate factor or one inappropriate thing and then also said other things that perhaps more correct says no no no no i didn't mean this is what i and i mean and it's i mean it seems to me the system worked exactly the way it's supposed to work in this situation good defense counsel says no your honor that's improper you can't do that all right well no that's not really what i was so you want to reservist times let me answer the question then try to reserve the rest of the time i still i do maintain i think the conflicting statements are still a problem because i think it prevents this court from being fully satisfied that the district court consider only correct things and only appropriate factors when it good morning james brown for the united states your honour's in this case the district court made a credibility finding that the defendant was lying about being a career the defendant doesn't dispute it but the defendant did not acknowledge his credibility finding in his opening brief and the defendant did not challenge that credibility finding in his opening brief he only mounts a challenge to that credibility finding in his reply brief by saying the credibility finding was based improperly on speculation an argument not raised in an opening brief and raised in a reply brief the st time is waived the defendant has waived in the challenge to the district court's credibility finding i don't recall that sequencing in the in well the the whole explanation about about how the court considered the factors and sussing the veracity of a statement let us credibility of ryan it wasn't completely sure that he was telling the truth but that's not that's different than some finding that he lied well the court goes on to say i'm assessing these in the context of the veracity of your statements so that is that is that is a credibility finding how do we get away from the fact that the district court made a credibility finding that the defendant was lying that's what the whole sentencing proceeding was about w you just read it to us and in that there was no expressed finding that he lied the court eight if that is his burden to prove to get the adjustment then in the court says well you know i don't think you proved it by a preponderance that you should get the adjustment i'm just this just doesn't make sense to me that's not the same as saying somebody has a line ok to let me try this record going three page sixty eight the court says i am not convinced that he's a minor participant because i'm not sure among other things whether some of the testimony he's given is truthful particularly based on some of my thoughts on what he testified or said he was paid among other things as well as a large quantity of drugs that were entrusted to him i'm not sure he's truthful fine what  is this about wait what is this argument about lack of preservation in the opening brief the the defendant says he is considered improper factors in making his determination in if in making its conclusion that he l court relied upon improper factors in making that determination worse where is the lack of preservation in that the district court the defendant did not acknowledge that there was a negative credibility finding and he didn't contest that finding is clearly erroneous what his argument was is  district court failed or erred not applying the three v one two factors and referred to factors that were based on speculation in not applying to three b one point two factors the defendant never argued that the credibility finding was clearly erroneous the defendant never  acknowledged that credibility finding in his opening brief if it was always it why is it not error to rely upon improper factors in making a determination you otherwise could make and i will refer you to i think our aragon case which was not that long ago in which what happened was the court the court relied on its own personal knowledge of how much weight packaging is on i whatever it was meth or something like that to make its determination the court may well be right but if there was no evidence to that effect it was it's speculation as to what the packaging was well in this situation the court may well be right he was lying but if the court were allied on improper factors to make that determination th so i see the courts when it's a very fair point especially in light of the case of the court cited you know about the methamphetamine i remember reading that case but if the court looks at it the court looks at the record and i would direct  record volume three pages fifty page fifty four there's there's and it's on my brief it's the st two pair two in it paragraphs on page six i mean the court the court works off of what the defendant said he was being paid so that's not speculation he was being the mountain said he was was was paying and then said well you had to pay for gas to ok because he was driving that's just reality but there was no evidence about how much gas there was no evidence about her the court relied upon a lot of what  deemed to be the economic illogic of this transaction well there are two things they're involved in that one is a premise as to what a defendant would do with a defendant because it was a cost benefit how you how much exposure criminal exposure you had how much money you needed to get to to make yourself comfortable with that criminal exposure well the defense were below made a pretty good argument which was i have a lot of defendants they have no idea what their criminal exposure would be well was there any evidence that says oh well you know this is how this is how couriers generally act and this is what they do know there was anything like that was no ok and we had a google map as to how long the trip w take that wasn't in evidence either that was the court doing its own work right right ok but but let me let me just draw in that a little bit more that the courts in the air the court may i mean it would have only gone tomorrow for example the mileage in gas i not going to be by more than a couple one hundred dollars to get money address what well let me just say what my concern is and i want to hear your response to it my concert this is not about unlike and in fact the courts a little better off you're than aragon because the court actually elicited a lot of these facts from him as you as you point out and so had some sort of factual basis out of the defend its mouth about a number of these things there's there are two things so one is as the defense lawyer points out part of the whole thing i'm making this economic a logic argument burke is well he could have had a job he could have done x y z he could have filled the gap and therefore why would he do this well there's no testimony about any of that is there for the you know there's not the court said if you just had a job and stay home you could've made about the same ok so that's why i did make sense to the court that's that's the st thing the nd thing goes back to the fun i made earlier you know one should not let me ask why is it appropriate for the court to compensation so why would that be appropriate if you're going to make that argument why would you put an agent on the stand to say that well isn't there it could have been done a different way we acknowledge that but we don't think that this that the court that the speculation  imprints was this was a bad deal and because it was a bad deal you must have been bigger in the scheme then you were because i can't believe you would do it for this amount of money well what evidence you know you know we're not going to you know see t v programs about this are we supposed to judicial notice of this that the court would take judicial notice you know i know the average mule would not work for less than five thousand dollars and you work for a one thousand dollars so you must you know there must be something else going on here you can't be telling the truth well keep in mind that the that that that factor the economic logic of the offense was just one factor other the others were the number to defend its decision not to do a controlled delivery the court so that gives me some pause about whether or not i believe you are a career and how minor role in this case i think you actually well and the rd one was the quantity of drugs involved and this court has recognized that in denying a minor rol adjustment the court can look to the quantity of drugs involved as a metric of the defendant's culpability and knowledge of the offense a case as i recall where we've done there there's been evidence to that effect and what do you have any case where that was just done to a sponsor by the court i  don't i don't deny that that can be a factor i mean generally when that's done you've got some guy on the stand agent saying well you know in my experience when people you know move drugs they were cars or certain amount if they did they would only trust somebody court going on its own or was that the court with evidence to that effect it's the the statement is in the opinion and i don't want to characterize how exactly this court applied at the court said the district court denied it for this for this reason and this was one of the things the court looked to this factor the amount of drugs involved and that played to the defendant's knowledge and culpability so it's a factor that the district court looked at in this court said yeah that's what the district court looked at  fact or cases in your brief ok we'll go back and study that ok so we have that in then we have the non cooperation in what that says about is veracity right right we have those three things what did you make a harmless  argument and all i mean let's assume for the moment we did is this economical logic thing is is there we didn't make a harmless error argument because we thought it was crystal clear that the just court made a credibility finding that the defendant did not acknowledge in his opening brief or challenge based on our three page  ohm and the defendant really just challenges that in his in his reply brief thats it so we think that his his failure to challenge the credibility finding into the case well let me tease that out a bit ok there's a credibility lining that and has again i'm a little skeptical that that in fact was a credibility finding but let's assume it is the that the defendant why if that it didn't stop there and if the core is if the defendant says you use improper factors in imposing a sentence on me ok well why isn't why isn't that preserving the argument that you were the the the adjustment that you mean was predicated on improper factors which would include the fact that the court found you on well we see the core we see the point the court is making and it's a fair point but the problem is the defendant has a burden in his opening brief he has a burden to identify the issue and then contest the issue in a specific way here he did his argument was that the district courts considering these things was error because the court did not apply the three b one point two factors it all related to the district court the three b one point two factors the defendant need to acknowledge the credibility finding he did not challenge the credibility finding he does so for the st time on appeal and once again we think that there the district court talked about his credibility at  we go through we go through the district court's talking about his credibility we bolted in the brief the district court talked about it at length the district court made this final finding i'm not convinced he's a minor participant because i'm not sure among other things whether some of the testimony he's given is truthful that that there's no way to look at that other than that being a credibility finding that's at least how we looked at ok that's how you looked at it but ok correct me if i'm wrong on this ok let's assume for the moment that in their opening brief they say you know the court didn't consider the commentary factors of the guidelines instead it relied on all the speculative stuff ok in your reply brief you're the one who says that you know the court found that he lied and because he well i mean your response factors they didn't acknowledge the credibility finding and didn't even discuss it they acted like it didn't even happen on the record but the testimony is there we quote it at length in bold in our brief there's no way to get around it and then in their reply they do see it they see it for the  then you characterize the argument in your response as one that if you don't address the credibility finding you lose and they address the credibility finding so you relied upon improper factors and so it doesn't you know it was a jury found he lied or not doesn't matter i'll clarify what i think is probably what the issue is the issue is it's one thing to say improper factors juxtaposed towards the guidelines commentary it's another thing to say that even if you found that i didn't have a ras the you did it for like things give me pas this raises questions for me and those but the basis of those conclusions was this kind of speculation the cooperation that i argue is inappropriate i also think it's i think it's just completely not supported by the record to argue that the dish  speculation about the finances played no role in his credibility decision or that it would have reached the same conclusion without the speculation even if we say the dish records financial speculation was off by a couple one hundred dollars what they just report said was you know what you could have you only made three hundred dollars you could've worked these other jobs would have made the same amount there's no benefit well i think what work without the speculation maybe that is too short was off by two hundred dollars there's also no evidence in the record about that he could easily go get these other jobs and make the same amount of money so where we are with maybe he made five hundred dollars court to find as a relevant factor that he must not have been telling the truth because he would have been trusted with that amount of drugs if he was such low so low on the totem pole i don't think there's any case law from this corner or any other court that says the amount of drugs alone can be a reason to deny th minor determination i do agree judges have considered that in connection with other factors that the s q l case there also the court also made several findings that they defend in that case lied about multiple things and the court made that said  there were actually proof that he lied and then the court separately dealt with this issue of the amount of drugs and had a discussion and said that can be a factor that can relate to the defendant's knowledge about an offense but i don't think that case supports that that can be the only factor i also think it's unfair to find that a criminal defendant who left high school after the th grade with a point five g p a who is in financial straits and a chronic marijuana marijuana smoker might not have made the same most rational decision that they just report