requires a comparative analysis of the defendant role in culpability must be compared with the other participants in a criminal activity and this court provided factors for district courts to consider in that regard the sentencing commission has now provided a to have knowledge about the other people involved they're going to leave him in the dark they don't want him to know the scope instructor of the organization and would judge better said was that's not a reason not to give him a reduction that's a reason to give him the reduction and the sense sentencing commission has applied that wisdom its number one factor now for courts to consider is goes the defendant have knowledge of the scope and structure of the organization and here fact it is approximately a million dollars in heroin here and what we know from a zaza pot is there are other participants in a courier case like this there are the people who supply the drugs and there are people who are purchasing the drugs and they're the people who are the major players in this because they're organizing and planning the activity they're the ones with decision making authority they're the ones with the higher terry stake in the heroin and they're the ones who are going to make the vast majority of the profits mr kirby when you look at those factors and compare him to those other participants in some sense mutually exclusive with him getting in it again a roll of adjustment in fact there are in some sense compatible because the decor credited his account of what happened in the district or had to credit his account in order to give him the and then that was knocked down to like so like seventy one hundred seventy whatever and the judge then buried below that down to fifty seven right i guess the question becomes if if there was not a comparison done and that was incorrect do you think there's even a chance that he would get much less than fifty seven months yes your honor because the judge has already found  should be given some credit for the company cooperation and he should get the safety now if the judge finds that he's also should under the proper analysis get a minimal wall reduction even if he only gave them the two level minor all reduction for example and also gave under one point one eight five if you get a mitigating roll reduction and you started with a base offense level thirty two which you did here because of the quantity of jobs now you are entitled to another two levels off so we'll be has now provided when you apply them to this case and you do the comparative analysis i think it is clearer but we don't even get there because this court has said that it applies a mic stand review to this issue and richard says it's clear that if you look richard says it's clear error with respect to the ultimate determination of what of applying the law to the facts but here there's a preliminary question did apply the appropriate analysis in the first place that's reviewed with a plan or review and this court said that in his office a potter and it sat in car and richards was relying upon car for that statement and richard's in fact at the beginning of the decision error because you didn't have the appropriate analysis that's the situation we have here this record committed legal error if you didn't apply the appropriate analysis to ordinarily the case then gets sent back unless it's harmless  there's no possible way that he would qualify for the reduction but here there's the government he at least has a colorable argument for the reduction so given that the court did not apply the appropriate analysis committed legal error case should be sent back to the court's consideration of the issue with the appropriate factors that the sentencing commission has now provided and the sentencing commission provided these factors precisely because of the fact that it views roll reduction as being used to sparingly please the court my name is emily i represent the united states of america your honor let me know if there's any case that would seem to cry out for a possible mitigating role a person with apparently no prior record who dated three hundred dollars to pay for his you know daughter's medical care and then gets roped into this thing saying well just just get on  bus and don't worry about it doesn't that really seem like least superficially a case that cries out for a mitigating role you wanted that determination used to be made by the district court and as judge went down noted that that is reviewable by this court for clear error but doesn't it have to legally take into account a comparison with other people in connection with this it does your honor and i would like to address that because i mean i've already believe what the court noted was you know the amount of three different things that money's involved the quantity involved in the distance traveled according involved the issue the sentencing guideline not that is going is a comparison to other other surrounding circumstance but the say anything whether they are as to his role in the offense cannot find it based upon the monies involved trying to involve the distance travel in the other circumstance this was a minimal participant that's almost like saying in the case law said you can't just look at drenches quantity here it looked like just really look the quantity in the character of the crime as compared to what he did basically what someone else did your honor what the district court said was considered everything that was presented to it and one of the things that was presented to the court was a very detailed memorandum by defense counsel stating every one of the amendment of the application no three factors those who are laid out to the court said he considered the matters that were presented to them that included those the listing of the factors and the will the argument relating the facts to those factors and that of service before the court as to who did what in the overall scheme the defendant's own account which was presented to the court both in a statement at the well the change of plea hearing not too much because there was a switch or district judges here but defense counsel submitted a supplemental letter that is factual conduct some of it referring to the defendant's efforts at cooperation but setting out the defendant's account the defendant's account is as the court noted all we have here for facts but the district courts have i have considered what was presented to me that included a detailed briefing on the facts a detailed considered it nevertheless the court cannot find that based upon i've considered everything but you know just because the money the quantity the distance and the other i can't say he was minimal looks like nevertheless means but regardless of all that this is what i'm looking at it means your honor i have considered all of that but i find that the fact is that way most heavily in this case or are the amount of drugs but that's not would say cruickshank said quantity that's dispositive that's all i'm looking at that's not what happened here what we have here is a man who despite his statement about the three hundred dollars debt and the you know maybe then he was going to get fifteen hundred dollars and first it was going to move money and then they get into that leaving not to you should disregard that but the court sentence he knowingly and voluntarily undertook to transport what defense counsel has just admitted was a million dollars worth of heroin and he agreed to transport it unsupervised across the entire width of this of responsibility that he undertook what was the degree of protection civility with regard to the kingpins and this and this particular group for example and your honor i'm very glad you mentioned that because that is a point on which i feel i need to correct the criminal activity that however has a specific meaning and in the reason for amendment stated to that the sentencing commission said essentially we are resolving the circuit split the seventh the ninth circuit say the people in the criminal activity are restricted to this particular offense the two other circuit particular criminal activity we have absolutely zero evidence that there was any such person as a king then we have and the district court had of course it was a district court decision  really a knowledge only three punch i suppose it's partly there is the only information we have about the criminal activity that comprise this particular crime all three participant one of them is the defendant himself another is the defendant's cousin who contacted him about participating in this offense a third is what i would characterize as the most likely person should have been prosecuted for a minor well the aunt which is the unknown person who delivered two suitcases to the defended hotel where we have no idea who that person was we don't know to what could be that person had any knowledge of what was in the bags those are the only people we know about we do know that the defendant when he reached philadelphia was to call some phone numbers to try to dispose of the drugs what actually happened was he was calling his cousin so it is unclear to me on the record whether the defendant even knew of whatever person in philadelphia were supposed to get the drugs so really are and it is again not the feds fault but speculation here because of politically what the what the sentencing commission deliberately said well it could be that the district court agreed with the government that this was a ridiculous story that he was making up and didn't believe that he was really just a duped just transport fifteen thousand dollars across and then they know put up and do that if they give it kilograms of heroin and you know it's like a bad movie where you get you get roped into it and so well person would seem to get on the surface to demand some type of comparison in order to figure out whether there should be a mitigating reduction robey option and i would invite you to the court to the decision of our court that when you take this into account you have to do it to touch certain bases one of the bases you have to touch is a comparison and i don't have enough before me to really make an informed  that the court did and your honor what we have is a court that said i have looked at everything and i would remind the court that as i said before this was a judge a new to the case so we can believe that the judge took some extra effort to study up on the can we can't tell the judge did know that he really needed to do a comparison we can't tell that realized that that's what he was supposed to do your honor it was fairly brief to him in that part of submission to which he said he considered what was presented to him and in fact the defense counsel at sentencing argued factors she did not specifically relate them to the factors that are in the application you know or mention but she argued those factors too and what the court said was i find two of those factors to be of greater significance he did not commit the legal error of saying the good quantity here that i can't find it it was a minor role that would have been a legal determination if that happened we'd have a legal issue to we do not have a legal issue here but let's sounds as if what he's saying is perhaps i don't believe your story so i really don't have to do a comparison and i just need to go on the amount of drugs the distance traveled that cetera et cetera but but we don't have any of that he is not  such said then he will give the benefit of the doubt to the defendant in believing this story got that wasn't in the context of the safety valve but it's i believe it's on the same page of the transcript it was immediately before but then factors are important this was not the ordinary mere courier this was someone who was trusted with a million dollars let's just say to million dollars sort of million dollars worth of heroin and he's recruited by his cousin and he has sent her ass country on a series of buses with these drugs with no supervision at all the sands a very high degree of trust and that isn't enough or should say that the court should say i'm skeptical about this because of this the court didn't react at all to that one need not have been skeptical about the three hundred dollars and fifteen hundred dollars and then originally it was moving money the court couldn't believe all of that but still how do you know that the vastness of the defendant's undertaking and he does not say he didn't know what he was doing he sometimes put in situations that scare us and we are we have a lot we are counted on by the law to make the right decision and he could've made the right decision at any point during this trip he could have said i being pressured to do something that i believe is wrong i'm going to the authorities anywhere too many cities there with no one watching him he could have done that he did not do so but if anything it looks like the judge almost credits historic because he says well in terms of not passing the smell test but i've often told students that i teach the one time a judge says i've heard it all not going to listen that's the one time it could be true and i'm going to give the defendant the benefit of doubt and based on that story he still finds that the defendant the the importance of this defendant activity the scale the scope of that the degree of freedom that he did have in executing that duty made him not culpable than the average participant isn't that contrary to what we have said that this the scope of the overall activity the money involved in the travel that that's what it says here is not minimal isn't that contrary to what we have said you have to consider no your honor in any case we have the sentence what's your best case for the proposition that that's incorrect it's the guideline that says ns upon that the governments admit that's different that it's not what the district court did hear the guess your court did not say i am so overwhelmed by the quantity of this that i am i can't i can't even consider anything else that's not what this district court had this to quote said i have considered everything that's been put in front of me and we know it was early briefed on all of these factors i would consider the defendant story which is the court what were those facts in this case it was the magnitude both of the defendant's unsupervised travel and amount of the drugs with with which he was intrusted to take from los angeles to philadelphia those key factors here and if you're looking at the knowledge of the scope of the offense that is the scope of the offense as far as we know and then found it was fully cognizant that he knew the job which are take you know might of thought well you know given all of this and given the fact that he was the deliver and but for him and he was the card in the whole thing then it was a minor but the court didn't reason through that way well the importance of  is also one of the factors and frankly we don't know exactly what alec judge reasoned and that is the judgement is not required to say any more than his conclusion however if the defendant had actually felt that the district court's explanation of its reasons was inadequate that is a matter that should have been objected to and we wish site to floor as many are we believe that that is the sort of procedural on an objection was made here this is fundamentally different in flora's media were no objection was made at the end of the sentencing there was no objection made in force me and the issue raised on appeal was and it went that there was an objection made after he was sentenced saying your honor i'm sorry your analysis you didn't cite comparative rolled right know that this court in floors me as specifically said if an objection has already been made prior in time and sentencing then you don't have to object again objection that should have been made after the sentencing said your honor but with all due respect you went over the quantity in the distance but you didn't compare his role to others and that's that's a basis for an objection that's what ha are do require at the end if if the judge has imposed sentence and hasn't given reasons you have to say your honor with all doing it i have to say with all due respect your honor you didn't cite the reasons for your you're ruling in here it's the same idea you are you didn't compare his role in deciding he wouldn't get a minimal reduction in doing thing i could find on that was a footnote in a case called  effect would be step one yes but i don't know if it was a holding or not it was in a footnote now and then there were three objections here i mean you had he objected to the mitigating role recommendation in the pre sentencing memo he objected during sentencing then afterwards the same rule of this court doesn't step three with respect to four as many here they all apply that rule but when it comes to a guideline determination like this this exact guideline determination involving minor role not only those courts require a  objection to that one piece the issues already been fully briefed and presented to the court that any on the court rules obviously this court is going to look at the court's analysis and we're going to look at the court's analysis to see if there's actually an error made but that doesn't mean that hundred seventy one kilos the eleventh circuit send that back because they said the district court put too much emphasis on the hundred seventy one kilos so we have to send this back for the court to consider all of the factors that the commission is now about let me ask you a question is a little bit beside the on let's assume instead of her one the defendant here was carrying a bomb i could injure thousands of persons otherwise the facts are exactly the