times before judge were delighted that you are here to help us decide these cases this week welcome i'm glad to be here and i thank you and we have three that are scheduled for argument this morning and the st is  united states versus gregory roth's well and i see mr newman is here and ready for mr rothwell in mr davis is here for the government and who do you have with you mr  morning mr newman are you ready to proceed i'd like to begin this morning's argument by addressing the issue regarding juror number six at the trial below what i'd like to do at the outset is to talk about this conversation that juror number six had with ridgeley courtroom deputy clerk and then the child judge and i'd like to ask your honour's to take that conversation those revelations that occurred in the fourteen or seventeen pages of record that have been that have been beaten up pretty good by the briefing in this case and move those cut that conversation and those revelations backwards is that mental exercise to the actual jury selection process and mr roth was position is that if those revelations that conversation had occurred during jury selection when you're number six was asked to be forthcoming was provided with expansive definitions of a law enforcement agency was asked to catch up question anything else that might have given him concern or anything else he may have wanted to disclose there was a conference in chambers yes and juror number six was there along with judge rogers and counsel for the government and counsel for recollection of the record and correct that that is an interpretation of the record obviously that my pinion judges that that would be an interpretation supported by the government my what i when i read that section of the record what i the t v for the juror and inviting him to just say see you haven't come to decision yet and then juror responding not with the yes or no but then inquiring back of the jury and in one line of just get of the defense counsel about where is this individual going to be incarcerated going forward and then in the course of that conversation that exchange that happens in i guess a room a conference area or roaming area of the courthouse the juror additionally advises the coun for the government counsel for mr awful in the trial court that they've he's spoken up about this issue with the other jurors and the other jurors of as maybe as a result of him bringing this up to their attention says yes he says that i brought this up and then they picked out the pick somebody else is the four person i think he uses the term spokes person when i brought this up so he reveals that during the course of this i've called a colloquy in my briefs that he has with the trial judge and counsel for both parties on page one page of the record do you see the connection between the selection of the four person and his expression of fear to  jury members i can't give you the exact page but if you look actually my colleague from the government father an attachment with the their brief in the case and they attached the entire i believe it's about fourteen pages of record so that's it's on the docket as an attachment to the government's brief in that case i guess what i'm asking is i'd understood that his his main concern was being the foreman is that is that what you would take from the patient record or do you have a different view of what his concern was i think he has additional concerns and i think that if you look at those forts i think it's fourteen pages of record in which this whole exchange takes place i think that that's borne out by those pages of the transcript as well but i have looked at those pages of the record of my takeaway is that his primary concern was being the foreperson basis or even state inmates on a regular basis so those are his concerns the safety concerns weren't any other concerns he had but he was expressing concerns a jerk concern for safety at in that in that portion of the clear that the trial evidence i guess cause this concern was a series of phone calls that were introduced into the record and those phone calls are with an individual who actually was in state custody and so that out and in the county in which this you sure you want to spend all your time on this issue i can talk about sentencing i can talk about sentencing so mr roth will have been sentenced previously to a state sentence that was more than i believe it's almost twelve years prior history point to sentence rothwell the class by him for the sentencing and smith for a career criminal and the what the government did below was argued that the relevant conduct for this  defensive conviction stretched backwards and they did so at the trial level based on a series of text messages that were located in a cell phone now the text messages weren't located in a cell phone that was on raffles person at the time of the search and seizure of his vehicle and they weren't located on the cell phone that was those two cell phones actually located on him at the time he was arrested on this indictment they were located in a storage unit and in the text messages that and a law enforcement agent testify or and it's indicative of drug activity back in in this relevant conduct period was that in the united states versus maxwell and their value waiting a relevant con that i would argue that there's not there's support for a similarity finding because in the other cases that were argued by the government in the briefs and in this matter the parties were distinctly known these are cases where people come to court and say i dealt drugs with that individual over this period of time on these dates and they also frequently have in the cases a lot upon by the government and mission from a defendant where defendable say i'd cook crack every day i sold drugs every day so it was a phone located in a storage unit apart from lot rothko's person apart from his vehicle which had been searched apart from the phones which were seized on him at the time of his arrest so it piers it was a phone located in the storage unit good morning may it please the court robert davies for the united states your honors on the st issue the district court did not commit an abuse of discretion by leaving juror number six on the jury the district court had an extensive  tour the juror said he could deliberate fairly and impartially he had not decided its verdict he could set his concerns aside he said he was truly feel comfortable going back and deliberating importantly also the jurors tone and demeanor were a factor and as some more and more ran in the other cases i cite hold the district court could evaluate that whereas you all respectfully as a review in court cannot and based on the colloquy and the record and the demeanor in the town the district court did not commit of discretion by leaving mr c on the jury the defendant mr watts well argues that also there was some error during voir dire there was something improper about jurors number six answers but there wasn't the juror said he was not associated with the judicial system he had not worked in four law enforcement agency but those answers were correct it was not unreasonable or improper for juror number six to not volunteer that he came into contact with state attain easer him or inmates at his job with  works the district court in not air let alone played only air by failing to remove mr c because of his answers during jury selection so the district court did not abuse its discretion an issue one and on that issue you should have from the district court with regard to issue number two the district court did not commit clear error by finding that the defendant's relevant conduct extended to end before june th two thousand and fifteen mr newman argues in his brief and argued here durrell argument that the standard of review was de novo but that is not correct this court reviews de novo whether a prior conviction qualifies under the career friend or guideline as a crime of violence or a controlled substance of but that's not the issue here here the issue is whether the defendant's relevant conduct included the marijuana he was receiving for distribution on him before june th two thousand and fifteen and this court refused that relevant conduct finding for clear error the law i would submit is very settled on that and thirty two and then declare reviewed the district court did not commit clear error by holding the defendant's relevant conduct extended back to and before june of two thousand and fifteen would agree that there are three things that we look  that's right there it is a factor your honor it's not a dispositive factor as the test itself shows you also consider similarity in regularity and the cases show davis spruce and bennett all showed that and what you have  is that if the at a reasonable fact finder could find that the defendant started up his marijuana dealing when he got out of prison and april of two thousand and fourteen the defendant and or meet she rented a house together along with mr macklemore and they got marijuana from mean at the mr right your honor but let me tell you why that doesn't matter if you look at cases like hightower versus cherry which i don't have the side for but it's a well known case this court can infer a fact findings from the record and there was dispute over whether this relevant and when you find that you review her overall finding that it was relevant conduct for clear error she doesn't have to go through each piece of evidence and say i find this i find this i find this i think if you look at her fought there are a whole lot of  finding that it was relevant conduct and if hi tara vs terry in other cases you infer factual findings from the record and you look at what was there evidence to support her finding that it was relevant conduct and the key evidence is not really the text messages help but the key getting marijuana from other sources of supply including recently street sources supply and judge wilson don't leave this aside i don't want this to get lost in the shuffle the day after his offensive conviction the police searched the storage locker that it is in his name and they find six million five hundred and sixty nine thousand dollars worth of drug proceeds he's also driving a jag wire a couple of days later he says in a phone call which is put at paragraph thirty of the p s r government exhibit nine b pa six he says the police at one of my other spots from which reasonable fact finder could infer the sixty nine thousand dollars they found was only one spot so he's got a bunch of drug money that he's already saved that supports the p s r statements that he was dealing regularly it's a similar drug he's dealing regularly it's ongoing and hopefully it's clear from my brief i'm not contending this is a slam dunk open and shut issue but this is a clear erroneous clearly erroneous review and a reasonable fact finder could go either way on this and it certainly was not unreasonable it was not clearly erroneous for judge rogers to go the way she did what responsibility of any to froth will have to object to statements in the is another pleading he filed then he filed a senate scene memo so he had plenty of time to file stuff before the senate seen hearing and then the senate seen hearing himself at at the senate scene hearing of self of course he could object then and he doesn't he never ongoing and what and really what i would ask you i mean you've got that the facts you are not super complicated it's the drug money they found the fact that he's driving a jaguar the fact that he said they only hit one of my spots relevant cases and they're not on all fours but they're very helpful davis bruce and bennett help me maxwell and ransom are very very are very distinguished are very distinguishable you put it all together and then you add what you all have to ask yourself is did judge rogers commit clearer with this finding and i just don't see how she did it this is a this the clear air standard is as you know very deferential to the district court i mean if two permits if there are two permissible views of the evidence and the judge picks one of them you affirm her and she picked a permissive view of the evidence here and then it's correct i had one last thing i wanted to mention at the end responses reply get to that the corner court said ordinarily so it's not a hard and fast rule more importantly the relevant conduct guideline one b one dollar and both circuit precedent after cornish and before cornered shows that relevant conduct includes all  own i want to go back to the government's reliance on the p s r paragraphs thirty eight to forty i've reviewed these obviously in preparation for argument and in briefing as well the what the information there says is it says nothing  timeframe only referencing a time frame where an introduction was made between these other individual and rothwell it says nothing about rock will distribute distribute distributing and it says nothing about that being undertaken frequently on a regular basis this i don't believe you gently took those statements specifically he objected to the use of this conviction this pair of conviction what i'm calling a paragraph sixty six conviction to be used in the calculation of a sentence and finding him to be a career offender well sure doesn't isn't the rule that we've talked about that the district court can rely on any facts in the past are there jack to to so what i'm asking is if he objected to any of the facts alleged in the p s r that are relevant to this condition i don't believe that's supported by this record your honor i think that what he did was he objected to the use of that earlier conviction the two thousand and five conviction to the use of that conviction for an enhanced purposes for the career the career should say it differently what rules do we have about the level of detail that the desser corps required to include and findings of fact right like which how much does the district court have to say as a finding support a finding of fact to support its determination on this issue that i would think of having a ruling that was discussed earlier during the government's argument would would be you know preferable than what we got here with th court basically saying well a back up the timeframe with the finding it's relevant conduct then and then enhancing it do you have any do you have any cases that say what what factual findings the district court is required to specifically make vers