right our th case for this morning is united states against cover review correctly applied or interpreted the guidelines with respect to the minor role just in which mr copeland he said request it d and secondarily the court ignored guidelines five to one two and in the process i think violated eighteen issue because the government hasn't responded to it and it's it's you know the judge's findings in this case can be considered by the square think it's pretty clear he relied on the mandatory minimum as a peg to impose a sentence in this case  f i want to focus my limited time today with the court's permission on the minor role issue and under three b one dollar my position would be that the role of an inquiry here is whether court said which is obviously our most important thing and actually some analogies the court makes its around all these patients are different at page eighteen in the transcript where he says he thinks the evidence falls far short of establishing minor participant and they've refused all these things that mr hope ruby is doing he says the defendant was not for example some sort of mirror on longer will person like that might have been a minor or even a minimal participant he actually created this fake business to receive the tomato shipments he's front man he has all sorts of different deliveries he opens up a bank account he picks up the drug money he's doing a lot distribution inc he was the front for it is his name on it but there's not any evidence in this record that shows he created that corporation they have aside i think generally speaking the judges assessment of mr crowe bruce's conduct with the banks with the respect to the lease agreement so forth this is active here's what the judge missed the judge didn't take into account the one hundred and fifty nine kilos seizure in laredo texas that's the central and most and in fact mr probus was sentenced on the basis rather than how they think that is an important consideration i think three b one point two not only requires you to look at the defendant's actual conduct but again to consider it in the context of the larger  other than in this broad comparative sense that we both agree doesn't work well i'm not asking you to compare him to the operation of the of the civil law cartel but i am asking you take into account what was happening in terms of the seizure  it was the defendants for and below to prove that under the totality of the circumstances that the defendant was substantially less culpable than the average member of the conspiracy didn't the judge need to make some finding about who this hypothetical average member of the conspiracy is no just sort of ballparks he says well you were doing a lot ergo not minor this court held in sandwell the lascaux that the district court is not explicitly required to identify who the district court found to be the average member of the i didn't mean who so much as what one of the set of roles for the conspiracy that was being charged and how does his role fit into them in santa mobile after this court also said that a sentencing court is not ascertain that the district court at least implicitly compare the defendant to the other members of the conspiracy right and that's my point because there are two ways you could look at this you could look at it as saying minor rol just means some absolute assessment you're not doing enough to justify the full busy recommended guideline sentence that would otherwise apply or a minor rol could be a comparative assessment so you might be doing a lot but you might be doing so much less than everybody else that you should get the minor role break and i was understood this to be a comparative assessment it's not just an absolute it isn't really enough to justify the full guidelines and so if you look at what the district judge said here and the essence of its reasoning is over here and page eighteen of the transcript  it seems like he's saying he's doing a whole lot there's not too much to suggest a comparative analysis well this report did make a comparative analysis and it's in the record what the district where did was set up two points of comparison on the one hand the district court found that the defendant was not the supplier for the drugs in the conspiracy and that person in the district court's mind was an individual who would have a higher level of culpability in the overall drug conspiracy and the f wasn't that and the dish more than on the other hand said that while the defendant is not a mere unloader either and that individual is someone who in the district courts mind had a lesser degree of culpability in the defense and in the whole drug conspiracy and then what the district court did was find that the defendant fell somewhere in between those two points on the spectrum and then the district court analyzed what the what the defendant actually did during the course of the conspiracy all the activities that he was involved in and in analyzing those activities determine that those activities placed the defendant beyond the role of a minor participant and what the district or did was rely on what were largely undisputed facts in the plea agreement that the defendant was the front man for this business that he created th court specifically made a finding that at least no later than that rd cocaine shipment the defendant was aware that he was involved in the cocaine trafficking operation and then once he became aware of that he continued to be involved in the lead activity he let that illegal activity continue and he received payment for his participation in it so there is ample evidence in the record that the defendant was involved in activities that placed him beyond the role of the marc minor participant from the beginning of the conspiracy all the way through to the end when that ten shipment was intercepted by law enforcement even though the payment as as to point out was pretty modest the evidence in that record shows that defend it was receiving about five hundred dollars per week for allowing his name to be used  on the warehouse lease and it's right and so if you figure a kilo of cocaine is worth about twenty five thousand dollars that's pretty little think the government would agree that the defendants compensation for his participation in this activity was not as much as the street value of cocaine that was getting out distributed but this amount of money was not insignificant to this defendant and he acknowledges that in his brief he says that this is actually a substantial amount of money for him given his financial  so he says he makes about sixteen thousand dollars for his participation and that's his motive for participating in the conspiracy he doesn't dispute that he received compensation for his for to spatial with respect to the defendant's argument that he didn't really have any involvement in this one hundred and fifty nine hilo shipment that was intercepted by law enforcement the government's position is that the defendant was absolutely responsible for that one one hundred and fifty nine dollars kilos shipment and even though he was not even though that shipment was intercepted by law enforcement before it reached the warehouse that shipment was intended to be received at the elgin warehouse and that intended receipt was only made possible by actions that the defendant committed by creating this fake business by leasing this warehouse and the fact that he didn't know that the shipment was on its way there you know that shipments were coming in and so his his responsibility for that shipment is essentially the same as his responsibility for that rd keil shipment for which he's fully accepted responsibility for so i don't think there's any basis to argue that he's not responsible for that one hundred and fifty nine dollars killer shipment and just briefly with respect to the mandatory minimum question that defendant raised i don't think it was improper for the district court to reference the mandatory minimum in imposing the defendant sentence here first it was clear that the mandatory did not apply the parties agreed on that point and there is no evidence in the record that the district ever thought that the mandatory that the defendant was subject to the mandatory minimum the district court specifically use the advisory guideline range as his guy posts one hundred and thirty five months to one hundred and sixty eight months but what the district where did was reference the mandatory minimum a sort of the floor that he wouldn't go below just because you know as he recognized sometimes drug quantity can be overemphasized in these types of cases like consideration of drugs why is an important factor and it was important factor in this case given the amount of quantity that the defendant helped to transport so i don't think there was any problem with the district court referencing the mandatory minimum and ultimately it doesn't matter because the district court found that drivers of the sentence in this case but he did not have he did not participate directly in that criminal conduct and i think for purposes of the role and hand spin that's one things a court has to focus on what to do viz a viz one hundred and fifty nine skill shift as by the way he did not the effect there was evidence of government introduced they when they got the truck when the truck drivers they had to make a consensually monitor call up to