amendment also added an application to three b which explain this new scope requirement really was new i should say explain moving the scope from the comments up into the text and this language is really important it's exactly on point the court must determine the scope of the criminal activity the particular defendant agreed to undertake jointly undertake in other words the scope of the specific conduct and objectives embraced by the defendant's agreement now that is exactly what i was talking about throughout sentencing judge rather would ask well are you talking about separate conspiracies he was convicted of count one when in fact i was talking about the scope whether or not he was embracing the seventeen days before sentencing l s n l s this court in united states v patton again just seymour the panel said the same the court must determine the scope of the particular defendant's agreement again what the defendant embraced what it agreed to be part of and what did he have an interest in this is a large conspiracy involving multiple defendants he clearly is not sentence based on the fifty or so the sen quantity and then on one can accept the notion that that would i think be error if he were sent to based upon the larger conspiracy but i want to although i would delight one where you had drug carry move and don't cross the border they get the dope from the same supplier and in that instance the godby guidelines distinguish between a situation in which they had in being in a group protection those things that i think the guidelines used to work or mutual assistance or protection there was no connection between them and yet the court said i mean the guidelines say you should attribute that do every one of those participants to the up ok that it seems to me at its core if nothing else is what we have here because we have the defendant going on drug trips with mr tate we have the defendant having a home with mr tatum where they're moving drugs we have the defendant having you there using the same bone the mood drugs so even if he was so that they were independent contractors they have their own clients are doing their own dope thing illustration number seven suggests that they just by virtue of being involved in that use the guidelines words this mutual drugs across the border they get them from the same supplier there's nothing in that illustration to suggest their friends are close they know each other just that but they are going across the border at the same time for mutual assistance and protection now the fact that these defendants mr ellis mr tatum's use the same phones they had the same house going to do a shot or whatever his name is and get the drugs i mean together they did a heck of a lot more than these guys who just moved across the border why is it that to determine a tip what you're your argument here well let's take that one piece of the time st of all the other guideline example that you have that you have to compare is that a common source of supply that is not exactly that sense that you would go to get the stuff together they would use the same bomb they lived at the same address why isn't it exactly that let's let's go through those one of the time  go together right they they they do drive together or show up at the same time together now is that tantamount to mutual protection moving drugs across the border no because when they show up together that they engage in separate transactions at the same time that satisfies percey ability but that does not mean he's embracing the objectives or the acts that they're after happened when he saw that they just happen to show up what you need more something like the protection by you know the mutual transport needs something like a negotiated benefit like buying together it was a reduced price the need to be something more than contemporaneous distinct transactions they're distinct and there is no evidence to say more than that such as the likely they will be jump jets fans in the new the mules going across the border it doesn't make it less likely that there will be some problems but what they went together to do this deal even even even a few weeks at the notion that they were having entirely distinct transaction they're not there i think there would be a distortion of the sound behind those examples i mean if you're moving drugs across the border that's a dangerous i mean we just we can all take common sense and experience know that's a dangerous dangerous activity to gauge and that's going to be a challenge and that would be a benefit for having a couple of walks down the street in the city you know this is just happening to show up at the same time because they're friends and them just one of them is selling crack they live in the same house over the conspiracy period of time isn't that protected each other and they do that for safety reasons i mean can't was the evidence was that mr ellis rented it and at some point mr tatum took over that lease and i kind of got it out from under him the utilities were still in his name and they were as as evidence that they were together at times i mean they are cousins they are family members they are present in the house and they do engage in some transactions i don't i don't think the evidence was that they both were living there and certainly not for protection the there that they both stated other places as well that was really tatum's place but that marvin was there a cage like you know the question becomes whether or not the relationship that they had being present cousins family members is that enough to move it along to say that it's a common scope meeting that marvin ellis embraced the objectives and all of the acts of mr tatum's much larger drug distribution office operation by simply killings were set up no i've been fact it seems pretty clear that mister fayed i'm assuming that residence and mr ellis was there occasionally affairs but to judge seymour's point i mean all we know is he took over the quite responsible and would change the names of these hillbillies was s'posed to just simply going in in cash for the existing utilities and that really doesn't make a lot of sense that mr tatum would go ahead and put the utilities in his name after number five dash with one roman and in that one you're talking about the court talked about i mean the guy was talking about resource excess in contrast to beneath you another street level dealer who has resources notices profits too and we don't have any evidence of that i think but why is it the notion of somebody paying for the ranch on a place while another person plays for utilities and we found paper that's exactly what was happening bet pooling resources for a joint endeavor to distribute narcotics and again even when you could even assume they have separate clients but they ran the house together to sell  or primary residence ellis according to doc was stayed there sometimes he doesn't know where he spent his nights otherwise so i mean that's i think your characterizations are similar to what the government is saying which is required but moving on beyond that you did he embraced all look freedoms objectives and sales is that part of the scope of this agreement simply because he them took over his what was his lease  into taking it over as a contractor for the that comes up short again is the government's burden those facts are for also that the phone you know morgan had his own phone the government would call the agents would call his thank you good morning your honor is my name is kerry castle and i represent the government in this appeal the district court here it didn't make and adopt the requisite particularize fine beans regarding the scope of the jointly undertaken criminal and further ends of their criminal activity she also noted that given all the government got all the government's evidence the fact that they live together they conducted drug transactions out of that house the fact that for utilities for that house and made a down payment on the lease that she felt the government had met its burden to prove relevant conduct and i think it's important to remember that the district court was not working from a blank slate here in fact this case has already been up on appeal and this court has already made findings in its opinion in that case and in that opinion this court made very clear that while there was this overarching very large conspiracy with the mexican drug cartel the top that ellison and the nephews the opposite alice were working together they were part of that conspiracy but they were their own unit and this court actually said that ellis had began because working with tatum and alice's nephew to buy powder cocaine from sykes and cook at least some of it into crack cocaine for sale to their customers over the next few months the three men worked together to sell drugs including crack cocaine they sold the drugs from different locations including the house that haskell avenue and then the court discusses beliefs in the contract to buy it so this customers so the district court and making her findings and in addressing the sentencing already had this court's decision alice who won from which to draw so i think it's important to remember that  for which the court found out was responsible and part of the p s r findings included paragraph one hundred and seven in the p s r which noted that allison tatum were involved in a jointly undertaken criminal accompanied mr tatum on a drug deal so that that evidence was in the p s r and the district court adopted the findings in the p s r so those findings can be attributed to the district court and found to be part of the particular findings that the district court made on the scope of the jointly undertaken activity moreover i don't know if your honour's would like me to say i'm point one i could move to point to which is the government's burden of proof here and i will do that unless your honour's come back to to issue one which is more what i understand to be the sentence claim that the court made a legal error or procedural  making the argument to preserve it and i think the issue that i saw was that well certainly mr joseph did make clear during sentenc said more than that he said you have to you have to make particular findings judge about the scope of my guys agreement correct i'm paraphrasing every boss the finke yes and he talked about layering on luring and then he made his objection and that that is his objection is that she didn't make specific findings here i mean or to me it sounded more like they were that the the argument of sentencing was that they were that we offered insufficient evidence that there was insufficient evidence of a jointly undertake in agreement d for criminal activity and so that's where my plan their argument comes in after the district court then said ringback because after the district court makes a statement that the defendant takes issue which which is when this record said it seems to me that the fact that both defendants are members of the same criminal conspiracy to distribute drugs clearly meets subsection one of relevant conduct one which same criminal conspiracy was a disregard referring to the overarching wants or the want that this court made clear was the applicable one the smaller conspiracy of elements tate which was a subset of the larger conspiracy but right after the court made that statement which the defendant takes issue with the district court said clearly both of them are engaged in drug deals and maintaining the drug house and further in sabbat drug criminal activity and then the court talks about the evidence that the government outlined so i would argue that after the court made those statements the defendant at no point said your analysis is still insufficient and you still judge have not made the particularized finding circuit requires so that that's my issue in the end i really don't think it makes a difference because i think the government wins on no error whether or not well it melt it may not make a difference but but it seems to me that it's hard i'm hard pressed to see what else the defendant could have done i mean except for this last thing a stating something as it relates to scope that he had already stated over and over again i mean he stated in  below where we're essentially we dispense with the need to say something else when it's very clear that you didn't want anything else to be said that the court just didn't do what he asked her to do so let's focus then when viewed in isolation to a vending or i argue that it's harmless error in this case and again it goes back to the district d court having adopted the p s r and that there are particular findings in the p and then moreover as i argue this court already has made the requisite findings as to the scope of the agreement and this court can affirm on any ground that it finds is supportable by the record so i think even the district or made an error in that isolated statement which i still cemented that not i think it was it was a harmless error and that the particular wise findings were made here and you are hearing we relied on a lot of different factors but it mostly came from the trial testimony this was a lengthy trial there was a lot of evidence that came out so i will briefly summarize i'm sorry could i going to let me just then issue two i don't think he can test that if if tatum is within the scope of the joint undertaken activity then the dope amounts should be attributed to i mean is there anywhere where that was contested the court just say on offer put it up on the record to make the findings and then that issue too is ok if the court did do enough to put the particularized to make the findings were those findings even correct so issue two as i understand it now i'm addressing that yes the district court's factual findings were correct because they were supported by a preponderance of the evidence that the government offered at the recent unseen factual findings were that there was relevant conduct and there was this joint agreement ok and so really we summarize a lot of what is already an alice want we summarize sykes's testimony some of the highlights are that it was really in the mix with them and had reason to know probably you know more then once you put mr ellison mr tatum aside he knew he knew the most and he talked about how he started in january of two thousand and twelve working with both men they would buy cocaine from mr sikes they would sell the crack they shared the house both men would would go together at times to buy the crack sometimes the opulence would go and pick up the cocaine for  street address and that sometimes customers did pick up their drugs at that address he noted that other times he's the opulence or either he or take another alice would deliver the drugs so it just was a combination  of those three individuals delivering drugs to their customers the op a little bit was compensated by both men for his tasks and then he's the one that operate the testimony that mr allison used to tatum had a falling out toward the end of this time period because tatum was was too bossy and so that kind of ruined the relationship between tatum mr ellis which also goes to corroborate the point that they had previously been working together and then this rift developed between that the two men the two main men strelsa mr tatum was there any evidence and since but i didn't see any evidence of splitting  profits is there anything in there to suggest to indicate that they actually shared profits and then the in that that takes us back to the guidelines illustration which spoke  about drug dealers who shared resources and profits so and i was in the least for argument's sake that they could conceivably have shared resources but i didn't see any evidence that they sure profits just went o this was i think testimony by one of the officers and it was a controlled by mr alice got into the car with the confidential informant and conducted a drug deal for molly's so not for cracker who came up for molly's pills then and alice collected the money from this customer and then alice went as i understand it and either got back in the car they drove and or just got out of the customer's car and then to them got in the customer right afterwards painted got in the customer's car and then sold the customer like six and a half grams of crack but allison already collected all the money so i think that's me the closest thing i can give you to show is  that it seems like they did kind of share out this withholding all of the money for from that customer even though part of it was likely tatum's as well and i think that might also go to the kind of the protection issue where just one gets in the car with the customer