caution required by this court's precedents when reviewing the cold record in this case and the second is that this record held and serve on time or sponsible for the actions of his coconspirators at the sentencing phase without making either of the two legally required particularize findings that are all surprised by this court's precedents now with those two points in mind your honor i'd like to begin by pointing out that the conspiracy here was a loosely knit organization involving a number of individuals and that the first sentencing judge who apprised the record in this case specifically noted that my client mr valentine was not the leader of the overall conspiracy indeed the district court noted judge and so on in the first sense in proceeding pointed out at id number sixteen ten sixteen eleven that my client was not more or less responsible for the drug transactions at issue in the conspiracy than any other member of the conspiracy indeed the district court judge enslin specifically rejected the government's contrary claims when the government requested a four point lead or ship  this case instead judge judge ensign rejected that conclusion and imposed only a two point management handsome and well specifically breasting that enhancement on a relatively narrow finding based on the testimony of witness butler that my client transacted a number of a handful of transactions with him regarding the conspiracies arkansas distribution chain and it was only based on that narrow finding were getting all the governments are going space and other witnesses indeed rejecting governs arguments based on other statements by that very witness that the district court concluded that a two point manager handsome was appropriate and finally the district court indicated that he rejected the government's view of my client's role in this conspiracy by rejecting the government's outlandish forfeiture request of seven hundred fifty thousand actually much more narrow than the government continues to claim even a briefing here anstead that he could only be shown by a preponderance to have played a role in the handful of transactions involving witness butler in stead of heeding those expressed statements on the record and express jensen the district court below concluded that because my client was convicted of the conspiracy he was necessarily attributable for all the drug transactions in the allegedly engaged in by the conspiracy and foreseeable he would be  your honor even if it were foreseeable that actually wouldn't be enough because there are two particular ice findings required by campbell and all the successor cases the other particularize finding goes to the scope of my client's consent and indeed campbell and orlando and other cases are expressed in stating that even if an individual knows the entire scope of the conspiracy which is not it is true here but even if the individual knows the entire scope of the conspiracy in nonetheless is not sufficient on that basis to hold the individual responsible at the sentencing phase for all the drugs transacted in that conspiracy and you can also see that point made in the application though to to the relevant sentencing guideline provision of one b one point three and that's a consistent theme in this court not the case if you look at the record that my client was aware of a great deal of what was going on in the conspiracy according to the government's own theory of this case phillips testified to a separate drug distribution network involving california that did not specify my client's involvement at all at any point in that alleged activity so it simply is not the case that there's either particulars finding here and even one would not be sufficient so at the absolute minimum my client deserves a remained so that judge john can properly appraise the record justifies at a minimum a reversal and remand but indeed we think that even that would be an adequate remedy here because the district or also failed as i mentioned at the beginning to apply the perjury of caution when reviewing key witness testimony kilos no your honor it is not because butler gave a range of transactions and it's you know to err on the side of caution is not to assume the high end of the range if i were to say that i promise you investment return of one the five percent it would be cautious to assume an investment return of five percent here butler said there were a number of transactions a minimum of three and the first one involved only ounces of illegal narcotics and that the  quantity of the others was between one and two so if they're even if you credit everything he said and we you know indicate that butler was unsure he expresses that he wasn't sure of many things he was a coconspirator was unreliable but even if you just take what he says a face value transactions but if you focus at the bottom of the range or even at the middle of the range the butler testified to and if you fully credit it you're still far short of the eight point four kilograms that were found below and the point five is the amount that sold to mr valentine yes that's near the bottom of his range of the range but he testified that he sold somewhere around fifty kilograms to correct that to mr valentine and other members fifty at all when he had he had not certainly did not say he credit thirty forty or anything like that what he said is that the witnesses some witnesses say forty to sixty and he expressed misgivings about that he simply said the essence might be inflated so he expressed on the record even though those as those estimates were way beyond the one point five issue he went out of his way to express misgivings and concerns about their reliability and i think that we know that he didn't he didn't agree that even a thirty amount which wasn't  discussed at the final sentencing hearing because you're jetted the seven hundred fifty thousand dollars forfeiture quests and how could he have done that if you believe that there were even thirty kilograms attributable to my client so i think what happened here your honor is that because there are these lofty estimates and the government keeps saying contrary to judge and so as expressed in this on the record that my client was at the center of all of this i think judge ocker over learned the lesson of this court's prior decision in this case and just went down some of the allegations and said well they're all in a bundle and m my client and rover is the only judge unfortunately who is available to review this record was not able to see the live witnesses who gave extremely problematic testimony as jensen noted that's why he thought the estimates were so inflated like those light of the fact that this is a cold record with suspect coconspirators testifying for plea bargains and the only fact finder who ever saw them alive expressly went out of his way to say that they were problematic in giving their testimony that only demonstrates that the normal cautious standard of review here has extra implications i mean if you're going to apply caution to someone who says i think i can probably get you or turn on investment of one to five percent then it might not even be cautious to assume a one percent return if the person is equivocating a little bit and i think that here part of the problem is that when you look at the cold record in the government sites these upper end bounds it can become easy i think to apply route mechanical analysis and just add them up where is a judge who were good scene who did in fact see them live was much more cautious than appropriate the stage for judge ocker to apply a cautious standard of analysis which this court specifically said the last time this case was here to apply potter standard of analysis and do his best in light of that standard interviewing the record and our argument is the judge ocker failed to do that and moreover he exhibited a clear legal error by again equating the scope of the conspiracy with the scope of drug attribute at the sensing phase it is black letter law that is not enough to have been convicted of the entire conspiracy to have the entire appeal and below is that if you look at this is civic testimony of witnesses engaging in transactions with my client you can build up to the the requisite amount and i was on that basis that we argued the case we said that my client was not the leader of the conspiracy and  the overall clients could not be attributed to him and in the face of that the this report simply said well because he is part of the conspiracy that's enough and the governor has never by the way argued forfeiture on this point your honor even if somehow that that there could be a fo problem here we raise this point on appeal and the government saw fit to claim that the the findings from judge enslin cross applied here and that is also just clearly roger instantly made findings as the one point five quantity and took care to say that the two particular us findings were made and that narrow particularize finding regard to butler with regard to the handful of transactions with butler simply can't be enough to pass muster at this stage when the thresholds are so much higher has failed to meet its burden its burden to substantiate the higher finding we made all of the material arguments we're making now that the witnesses were unreliable that there ranges should be cautiousness in the ranges and in my client was not at the center of the conspiracy and then we got  overlook those points and make this act generalized actually finding and at that point the government i think had overreached and it was appropriate for us to point out that the district court made a legal error it's not i think our responsibility to ask the courts to make findings would be contrary if they were made you're on or again i don't think that's a fair that's a fair view that if the district court we cited the relevant island provision for example we cited number of these cases and those are the guidelines for vision and the cases require the particularized findings and the government moreover argued the case on the same terms that we did and so in the face of that the district court made this again this generalized statement about the conspiracy and i don't think it's fair at this point to say that well because we didn't anticipate that the district  the morning please the court jennifer mcmanus on behalf of the united states the district court did not commit clear error in finding mr valentine responsible for at least eight point four kilograms of crack cocaine the court applied the appropriate level of caution it reviewed the entire file including trial transcripts and issued a six page written opinion in a thirty five eighty two c two motion which is long for that type of motion there's a whole page full of transcript cites to the record to support the judge's findings i'd like to just point out that judge is not writing in a blank slate here so if you look at this court's opinion remanding this case the court said this is a case where uncontradicted trial testimony indicated that the conspiracy involved tens of kilograms of crack cocaine that were foreseeable to each defendant as a member of the conspiracy and giving an opinion and judge maloney's findings in the consolidated prior appeal in this case in fact it expressed judge and son expressly credited jerry butler is testimony he said i credit with jerry butler said he need no findings whatsoever as the other major witness used to phillips credibility  think if you read the briefs you may come away with a feeling that jensen made an adverse credibility finding and said because for example there are you say he jensen holy declined to credit you said phillips estimate as to the drug quantities enslin did janssen certainly expressed some misgivings about the high end quantities this was a conspiracy that took place over the number of years drug dealers are in dettori asli not very good about keeping track of exactly the in which they're dealing in so he had some misgivings about whether the total quantities fifty to seventy five for example was accurate so as this court said in its prior opinion remanding to judge her although judge  enslin questioned whether butler and phillips inflated the total quantity of drugs involved it is clear from the transcript the his concerns were focused on how many tens italicized in this court's opinion tens of cute kil room volved in this case this is just not simply a case where there's a few ounces here and a few ounces there that would have to tally up and try to figure out with the most conservative smallest quantity transacted between two individuals that we could properly assigned to the defendant this is a large scale conspiracy that operated interstate over a number of years in there were tens of kilograms and bald jimmy reed valentine was not a member of the conspiracy on the periphery he was the one making the calls he was the one making the calls the supplier in arkansas sending his nephew corey valentine down there to retrieve the drugs of the half of the organization so these are the findings that judge  made if you look at page five of his opinion and all of those record cites i like to just point out three of them and then i'll conclude in this first there are questions what's the most damaging evidence against the most work or group or the most damaging easiest to see evidence is but there is testimony that corey valentine made approximately twenty trips down to our mariana arkansas to retrieve between one and a half and three kilograms of crack cocaine per trip each time so that's twenty right there and that's twenty trips at one and a half bottom and so i think it's those figures  that that's all cited in the district court's opinion and it's consistent also with what you said phillips testified the other major witness was yousef phillips and he testified that cory made the district court pointed out that in the paragraphs sixty two of the pre sentence report it says that corey made seven trips down to marion arkansas between january and july of one nine hundred ninety seven so in those seven month period he was making a once a month trip so that's seven trips right there and if you look at the actual trial testimony of youssef phillips what he said at trial and page idea number two two thousand and sixty eight to sixty nine is that corey went to  her said in his opinion is that i'm going to i wish i had the advantage of seeing the witnesses live in making these findings a new but i don't and i have to make these findings based on the existing record as it is as the court of appeals as instructed me to do existing record as the time of the original sentencing so he went back and he looked at all the trial testimony he read the pre sentence report he went through all of the evidence he made these findings indeterminate because there was detail in the testimony because the testimony was consistent that it was reasonably reliable there's just no basis to it at all in this record to find that mr valentine was responsible for let's say less than ten kilograms of crack cocaine the court made adequate findings again the court was not writing on a blank slate here and i do think that the court absolutely is entitle to draw on what judge and son found at the original sentencing and what the court of appeals has already found but  taking it into context and looking at page six of the court's opinion where the district court actually you cite the relevant guideline number guideline one be one one be one point three a one b and says yes th defendant is responsible for more than just those amounts that he personally and directly transacted with the supplier he is responsible for all jointly undertaking criminal activity in the court described it jointly undertaken criminal activity in terms that was consistent with what judge and slim found that this was an extensive crack cocaine distribution conspiracy and this defend it was not only a convicted member of the conspiracy but he was a member deserving of a two point  down an average fifty to sixty six thousand dollars per trip that was money pool by jimmy raye valentine and the other members of the conspiracy and corey it went down to get the drugs and to be re valentine's direction  so given that this fine is the judge made absolutely were sufficient here to make that particular i was finding this is not an original sentencing this is a thirty five eighty two c two opinion and he does have to find quantity and he has to find that it falls within the scope was properly attributed to mr valentine in terms of jointly undertaking criminal activity but the findings that he made in the six page of his opinion were more than adequate to support holding this around time responsible for at least eight point four kilograms and if i can assure you that if mr valentine wanting more findings he could have moved for reconsideration into jonker would issued another opinion because juncker is very thorough and very responsive but they didn't do that here and i for one have no doubt that if this were to go back down for judge ocker to make particular further particularize findings he would reach the same is i'd like to make two very important points at this stage when the court asked the government what their best piece of evidence was they pointed to the same thing that they said in their brief the twenty trips by koori by a different defendant the government's brief on itself  record testimony they think is the best for them can't even connect how many if any of the trips were my client's direction this is exactly why you need to have the particularized findings to figure out who played what role in the conspiracy hypothetically if my client pla conspiracy beyond the handful transactions of butler socially organized two or even three or even four of these trips that would still be short of the eight point four kilogram finding made below the government's attitude towards the record as a just events as is had throughout the entire proceedings because an ounce here announced there my client gets a huge number that simply is not consistent with this court's case law it's simply inconsistent with caution and it demonstrates the need for the purest findings that the government appears to have acknowledged in its last speech were not actually made here by the district court below ok so that's the first big point i want to make the second big point has to do with the issue of judge yonkers this position below in every single one of the particularized findings cases the district court was on notice under the law that it had to make the findings and it was reversed and remanded on that basis so every case applying campbell is a case like this one where the district court was on notice under law and simply failed to apply appropriate confirming that judge enslin made the particularized findings here for one point five yet judge ocker did not confirming it even more a judge moaning in the peril proceedings involving the other defendants made the particularized findings yet judge younker did not and the reason is the judge anchor had the same attitude that the government just events because my client was alleged to be a leader even though judge enslin repeatedly emphatically rejected that he was a leader of the entire conspiracy nonetheless everything can be attributed to him so you honour's i also like to point out that the government smetana say the every consideration expressed its confidence that the judge below what arrive at the same conclusion if given a chance well with respect your honor this issue is properly but here on appeal there are no our  there is no obligation for a motion for reconsideration the district court made a legal error that this government is not been able to remedy here an argument and if the government thinks that it will prevail on reconsideration then i think the score to give it the chance to find out by remaining the case for juncker to review the  case will be submitted think that completes are arguments calendar so you may