good morning judge may it please the court counsel and also and i represent just in morality he was charged and convicted of conspiracy to distribute five hundred grams or firearms and marijuana that motion was denied and so that would be the basis for those are the basis for second issue and the third issue has to do a sentencing so do regarding the first issue the suppression issue  the denial of the suppression motion would be reviewed you know of all the facts for clear air that the crux of the issue in this case is that they hadn't actually identified either my client or chase coots men as being in the van when it was pulled over i understand that they had identified those two persons previously having been in the van they'd identified them as the persons that they were investigating but at the time well just prior to the time they were pulled over they had not been identified as i could find that i don't understand why that's essential well i think if you've been given that the amount of surveillance of the hand and  on the persons they suspected to be in there it's about the occupants are actually in there and so the fourth amendment covers applies to people and the van is it wasn't suspect the van wasn't suspected of wrongdoing the people that would have been in the van were the one suspected of wrongdoing and that's why i think it's important that they didn't find the persons in the van i haven't read the sentencing transcript what was the testimony by the officers of because they based on the information that they had about who they suspected the aca pence of the van were so they there had been an ongoing but because they suspected that there were drugs in the band based on what the drugs in the van i agree with that but that doesn't that doesn't deal with the identity of the occupants you see were my my i thought i'm not confused i'm just questioning whether the occupants if you're right about the occupants identity other person got into the van at the hotel it was suspected they had drugs in there they then went to young running crane's house and went into the place and then three people came back out it just so happened that two of them were my client and the codefendant here who's attorney is here today so there were stops made in between and a so i it's my position that at the time that they stopped the van they didn't have enough information to suspect that the drugs were in the van so would that require a reversal based on clear error in fact finding that what you're asking us to do because didn't the district court find that the officers knew or had identified them as the two in the van yes honor i believe that it does require the clear air and the testimony at the suppression hearing about the identity of the persons in the van eyck i argue is what was who got into the van at the hotel not at terry young running crane selous and so the four zero four b issues then if there's no other questions on the suppression motion i think i'll keep my arguments brief on that as well investors unless you would like to spend more time on them but the other acts evidence and i characterize it as other acts the government characterizes it as reza just i it's my position that the marijuana and the guns just wasn't charged with drug traffic gun trafficking so i understand that the courts opinions have have said that guns and drugs go hand in hand so to speak that's not word for word but it's prejudicial to bring in the evidence of a gun that the codefendant had in this particular case when it could have been easily kept out and same thing with the  marijuana the marijuana could the reference to what marijuana could have been kept out and they still would have had methamphetamine that they found which is what he was charged with conspiracy to distribute didn't wasn't the marijuana basis for one of the searches though was that necessary to sort of explain the course of events or course of investigative events so i think they could have done it without that the morning of september twenty  gun that conversation could have been edited to keep out the reggie or the marijuana and the firearm and then the information about the methamphetamine would have come in they believed law enforcement believed at that time so earlier in the morning on september twenty second that they had enough information from the investigation to pull over the van and so i think they could have done that without reference to the marijuana or or the fact that they found marijuana in the van they said they were drafting a search warrant before that what it would have whether it would have been granted or not i  was twenty ounces of methamphetamine from discussion between the cia and my client on april twentieth when the judge at sentencing as as a finding or as a sort of a comment because it certainly wasn't a request that the court wasn't required to limit to limit the relevant conduct to the amount seized i understand i guess i agree with you on that and i think that it was an erroneous finding because i think she intended to find that to include only the amounts who were actually confiscated and ended up including some amounts that were just discussed so these amounts were this amount was like thrown out there like in the or did she intend doing clude all of it but she mistakenly thought that was confiscated i don't think she thought at all confiscated because in paragraph that was your point she said it was going to go and i'm sorry i think it's paragraph ten of the you know that report says that it was discussed and the at the amount was discussed but not confiscated right but i thought you said the judge mistakenly said that she was everything she was counting was actually confiscated right i think i think so she seemed so she may have thought that that amount that was discussed was actually confiscated but that was incorrect if that's what she thought that would be incorrect i see you don't think that's what happened all right well why couldn't it be counted even though it wasn't confiscated because it wasn't it was there was never in agreement th like think it's pretty clear in the comments to the way that the the the drugs need to be there these to at least be in agreement even if they weren't actually delivered in this case there was no agreement for that twenty ounces it was why does it have to mean agreement suppose a buyer is saying i might be interested in twenty ounces in the seller says well i've got twenty if you ever meet him why isn't that enough right there to count the twenty so the note twelve to two d one point one and brown versus the u s talk about that there needs to be an agreement for the quantity and even if that agreement is delivered or if the amount is actually delivered is different then you use that amount but there still has to be in agreement not just a discussion about possibilities of getting amounts that may or may not exist suppression issue that ms olson has argued before this court and i would ask the court to allow me to join in her arguments i would only add that we are relying on the weighing widgeon navarette versus california that  law enforcement is required to have particularized an objective basis for suspecting that particularly persons stopped of criminal activity in this case the fact that law enforcement was fortunate enough that the people that they hoped were in the vehicle were and were in fact in the vehicle we do not believe is enough to justify the traffic stop but they can stop it for drugs with probable cause that their drugs in any way your honor i would i would still i would still assert that they have to have particular eyes suspicion of the people in the vehicle and that there was not a basis to believe that there were drugs in the vehicle justify the stop that's that's part of the factual error that we are asserting here in addition we believe that they that it was true that they knew that my client or ms colson's client were in the vehicle when it was stopped because there was no actual evidence that they were aware of the identities of the people who drove away from the young running crain residence was there any suggestion that there was anyone else that ever drove that van during the course of their surveillance that you could point to to say see if it's equally likely that it person and person b if it is been here or there was no evidence that a male stroeve the vehicle there was evidence that several other people had access to the vehicle and had been passengers in the vehicle including the confidential informant some other people that they'd given rides to earlier in the day the people in the young running crane residents and law enforcement had no idea how many people or who was actually in the residence so it was not beyond the realm of possibility that somebody else came out and got into the vehicle and drove away if i may move on to my second issue we are challenging the court's conclusion at my client sentencing that dean versus united states did not permit the court to take into consideration the five year mandatory necessary to comply with the for purposes set forth in eighteen u s c thirty five fifty three eighty two indian versus united states the united states supreme court held that a nine twenty four c sentence does not prevent the sentencing plea legitimize going below a mandatory minimum where where does that leave us as with the legal issue i think that the legal issue is that the language that the chief justice used in the dean decision was a just sentence the court can impose a just sentence on the predicate offense and i think we've had we've had myriad of unjust so the speak refusals to go below mandatory minimum for the last almost thirty five years and my argument is that in th case didn't give you the opportunity to do that in a situation where a nine twenty four c sentence is going to make an aggregate satins that is unjust the dean the dean holding really relies on the fact that we're talking about an aggregate sentence  here my client received fifteen years by the time he's released from prison he'll have served nearly forty percent of his life between jail and prison on this one charge he was twenty years old when this offense was committed the district court recognize that this was not necessarily a just sentence that the court felt compelled to impose the district court commented that they would have imposed a less than one hundred twenty month sentence on the first count if they if they felt that dean allowed them to do that this was a legal issue that we raised the court ruled on it i believe that this court's analysis of the district court's conclusion in that regard if they know that it's a legal issue and i would ask the c it is there any there good is your forte that has adopted your argument you know i'm afraid that there and i conceded in my brief that there have been district courts in other circuits that have rejected my argument in candor to this court i am unaware of any circuit court decisions from any circuit and i spent a lot of time looking the last few days but i'm unaware of any circuit court decisions that have adopted my argument most of the decisions rely on predicate offenses that don't by themselves purport to carry a mandatory minimum like the one in my case so i recognize that this is probably an issue of first impression at least for this court the government argued in its in its brief that this issue was rate waved by my client when he entered into his plea agreement i just want to address that very quickly by pointing out that there was no objection by the government to this issue being raised in front of the district court it was raised in my pretrial sentencing brief it was addressed in argued on the merits by the government myself before the district court the court ruled on it on the merits and came to the conclusion that we're asking this court  revise i believe that that issue has been that it was foreclosed by the plea agreement has been waived and with that i see that my time is up so unless the court ask questions why do you say that the government waived it because they didn't stand up and say you've waived it when you are you know he's at the point my yes your honor my understanding is that had the government done something that would have violated the parties plea agreement it would have been incumbent upon the defendant to stand up and object to the time of sentencing or risk waiving that issue i believe that the rule should be reciprocal they have two issues in common as we've heard that is that vehicle stop issue so i'd like to address that first leading up to the vehicle stop there's a long complicated set of facts but i think i can simplify it for the court today if we just pick out a couple of the facts and concentrate on those the others are just fillers  march of two thousand and sixteen mr morale is contacted the c i price set up a drug deal for ounces of methamphetamine that was recorded the c i was had proven to be reliable it already been given the recording equipment so we have the recording of that conversation that deal did not count so we have over one hundred pages of magistrate court judge and district judge opinions your watch you soon we read those and ok not take us through it again and i appreciate your point i like just hit the highlights and i'll just try to hit the what do you say to the argument that the officers didn't know who was in the van and therefore there wasn't probable cause that seemed to be the lead argument do you want to cut to that and i i agree with the points that seem to be made by the court that it doesn't matter who's in the van it's the truman like i don't think the court was making any arguments were just asking questions ok but i do want to point out a couple of places where i can clarify that is just flat wrong to say that police did not know who was in the van in the motion hearing transcript page two  nine that docket number ninety nine police officer testified he identified who was getting in the van at the trailer house that led to this burn run in the traffic stop so you're saying that there was surveillance from the time that they saw the two people get in the two co defendants get into the van and the time was pulled over because they're suggesting the stops in between there's a there's a span of time between the time they saw these two folks getting into the van in the time it was actually pulled over if i understand correctly i submit that their suggestion of interrupted surveillance is incorrect it's the government's position and found by the district court in the magistrate that these two defendants were seen getting into the van and there was unbroken surveillance of that band from the point they got into it until the time it was crap just so you know and just quickly running through the five places in the record where we see that transcript page two hundred nine report recommendation at page nine the order adopting the report recommendation to page five the trial transcript at page two twenty seven all that law enforcement new who isn't a fan or what if what if what if they didn't know what it would if there wasn't sufficient information to allow them to identify those two people with their sufficient evidence in the record that there would be drugs in the van as has been discussed earlier yes there were the reliable informant had already reported what he had been involved in that day to law enforcement including the fact that he had seen the packages of what he believed to be methamphetamine in the pizza box and that went into the van so van that went to the stash house that had been already established that  jerry jerry young running crane had it was that house is being used as a stash house that's where the van went that's where these two defenders went into for a few minutes and then came out of and got back into the van we also knew that these individuals were going to travel to what mr ruef to as the reds which is an indian reservation in south dakota to sell not just to sell drugs and as they were doing this burn ron the crusty old sergeant who testified at trial said that's enough a t f wanted to continue investigating and finding out who else was involved the sergeant said that's enough get a patrol car stop that car and what did we find if all these facts that we believed to be true were proven to be true mass marijuana firearm all in the van with these two defendant i want to skip forward to the issue mr guus been raised about the dean case we do assert this case the defendant and the government negotiated a contract and that was a conditional plea agreement with two enumerated exceptions to the appellate waiver one was this suppression issue that we just heard of the second was any decision by the court to depart upward pursuant to the sentencing guidelines as well as the length of a sentence for a determination of its substantive reasonable this should the court impose an upward departure or an upward variance the court did not impose an upward departure or an upward variance so neither of the provisions of the appella waiver apply in fact in this case the court gave a downward a substantial downward variance the guideline range started at one thirty five  very downward to the one twenty mandatory minimum the defense argues that we've somehow waived our reliance on or appellate waiver because he was allowed to argue this issue at sentencing that was within his right we did not reach an agreement a plea agreement that prohibited him from making sentencing arguments so he went to the district court as he was allowed to made his sentencing our human undine the government opposed that sentencing argument at sentencing the district court the sentencing court agreed with the government's position and stated that the managed very minimum could not be reduced based on dealing after all of the issues had been fought out the court had made her ruling on that decision and stayed it the sentence she intended to impose and asked if there were any objections to this any reason the sentence she stated could not be imposed as  i'm government said no and in a non responsive answer to that question from the court to develop a defendant said i want to note for the record my objection based on dean and please place my defendant close to his home the judge said i'll play some recommend that he can be placed close to his home there was no waiver in that end of the hearing conversation between defense counsel is fine that he noted it for the record but that doesn't mean he's modify the contract that we had if you wanted to present the dean issue to this court he should have  could you address the twenty ounces of drugs that were apparently not confiscated but counted yes thank you while that was going on in the sentencing hearing the judge was juggling three concepts one was twenty pounds going to be included twenty pounds it was discussion separate cation two was the twenty ounces that this defendant offered to sell to the c i for sixteen thousand five hundred dollars should that count and three what should the purity be of the methamphetamine that wasn't tested for purity concluded the pier that we had a conclusion of the purity she declined to include the twenty pounds and she said but she was going to include the twenty ounces and then as part of this discussion in passing she points to for all of the quantities that she included are listed including the twenty ounces and her passing comment we believe was a misstatement she said i'm going to include everything that's in paragraph eighteen  confiscated we knew that it wasn't confiscated the court knew she had participated in the suppression issues a trial sentencing that had gone on  matter of fact into the second day so she was well aware of the facts of this it was just a simple this statement on her part we assume that that even if she intended only to count the confiscated which she's not restricted to this is harmless error because she in this case also made a downward variance from a life guideline down to three hundred  sixty months so three hundred sixty months is within the guidelines range for this defendant's criminal history category level thirty seven that's that's lower than what the defenders argue in this appeal that should have been applied if you do the math on the defendant's argument and why tsunamis arguing that if she had started at a lower point she would have varied to a lower point that's not the argument that was made i see the assumption but the judge said i'm going to very down because i think this is the appropriate sentence after all the analysis she still did the thirty five fifty three calculation and decided that three hundred sixty months was appropriate regardless what the guidelines read to us did she say that last part regardless of what the guideline range well where she said was i find this to be appropriate  and i know i know but she's got to consider the guideline ranges part of the thirty five fifty three a analysis dontcha think yes and she did and did but if she was using the wrong range the argument goes then that might change the analysis we submit that it's still harmless error your honor because of the extent of the variance downward and it would have to be at least five it up to seven levels in order for it to be outside of a guideline range well do you think that the economy of the twenty ounces can be affirmed even though she was mistaken about whether or misspoke you want to put it about whether it was confiscated yes i certainly do day to take the twenty ounces because he didn't want to mess around with small quantities like for one says or half of what he's trying hard he pulled out a calculator and did the math to show the defendant the c i how much money he could need if he would agree to buy the twenty ounces for sixteen thousand five hundred dollars if without more findings about an agreement there is there any risk that that's double counting that that twenty ounces could have come up popped up later and an actual sale that was an april twentieth conversation and weren't there some were there controlled by his after that and there was a controlled by after that conversation for how much for four ounces a gift with an additional one ounce gifted to answer five ounces total in that transaction but i don't think we have double counting because the facts show that this mr mehlis was up there with another defendant us was back at a separate hotel with more methods that we had so i don't think we risk double counting in that case well you're also saying the most double counting even taking a broad view of it would be five maybe fifteen that couldn't have been double counted it would that change their work would that change the i see i'm into the amount of time i'm trying to reserve i can't reserve i'm sorry your honor i've got a five minute warning here though so i'd like to talk about other acts motion that w who's charged only with the conspiracy for the math of better me but he is the one who talked about the marijuana and matter if everything together that he had brought the marijuana was found in the car which led to the car search no that's that's not true at all from my point of view your honor the charging decision was made giving consideration to sentencing issues in a doesn't matter for sentencing issues if you have seventeen counts or one count and you can see the history in our office we generally charge one conspiracy talent and if in a case like this you can't tell the story without referencing the other issues we reference other issues but this case is also a good example of where we don't put in things that aren't needed to tell the whole story in this case we had photographs of mr morality holding guns displaying guns doing things on the internet with firearms other conversations with the cia about guns we didn't put any of that and we limited that out because it wasn't needed to tell the story in this case of the matter of enemy and conspiracy only the two firearms were talked about and only the marijuana that was found to lead to the search of the car the marijuana that was found stored by mr morality with methamphetamine that's the only references to other substances or other acts it was sort of i'm drying up the court house nor the questions