may it please the court my name is jane romley and i represent thomas acumen the role enhancement under three b one point one requires proof the gammon exercise leadership control or at in the firm in the in the sermon he was the marketer carlson was the senior chiropractor right and at some point evidence does show that gammon took over some of the finances but what was not clear is the disarray rickard tell us in terms of the structure of the verb itself these were equal partners they were the only difference was no one partner on the greater snow they are all equal partners however in the testimony of davis and that is critical because he was the last partner broady and he was buying into the partnership so there was a payback situation or with his with his buy in but i would direct the court in the clerk's so we have a waiver issue here i do not believe that we do because are you refer to footnote five of the employees brief i do when that whole entire argument was based on the original attempt by the probation office to get a four level it is in the sentencing hearing and it is mr frost at sentencing saying and in terms of either of the sections this isn't a case that involves some kind of sophisticated tax evasion scheme that involves millions and millions of dollars there are three where that's a different issue isn't it but the quote the judge had to decide on and handsome and whether or not a b or c was appropriate and frost said at sentencing under any of the subsections this does not apply and the court heard that argument because he then counted participants and he backed off of subsections and they and said there were only three here so we are only really looking at  because it is not clear he found that this gentleman was a manager anyway he did but what was not clear from the probations analysis or from the court's analysis or from the government's analysis that there was a finding that he was a manager or had control over one of the other people to supply didn't didn't the defendant say that he was the leader manager and supervisor as did all of the employees but the important thing about the rubio decision which came three months after the court pronounced sentence in this case is it found even some control in that case some control and felt that that was not  enough you don't have to have control to be an organizer parmeet do you agree with me that you don't have to have control to be an organizer no i do not know well what i'm referring to or to judge you bell opinions that span twenty years the subsection three the the court made it clear in rubio that control and supervision is required under all three and it is just a matter of degree well st of all you're quoting rubio which is an unpublished decision correct then i could read you more that says that an organizer does not require control i will not take issue with the court's interpretation of that this isn't however i would like to point out a few letters that are conflicting and i believe the rubio decision is important because it does try to bridge the gap of twenty years of confusion with regard to whether there are different standards under subsection a b to the roberts decision the th circuit in one thousand nine hundred and three the court held that manager or supervisor who is by definition not an organizer or a leader must have decision making authority or control over a subordinate situation and he participated in it and he nobody forced his hand nobody made him do it that's the the the younger person that is the last person brought into the when he was that he was brought  but what we don't have even from the trial court is a finding that thomas was somehow convert coerced or control and his testimony suggests otherwise and in fact and i would like to say to jesus a lot of these cases that deal with conspiracy or drug cases and i would like to distinguish this situation tax evasion money drug under the situation well there's no part of a drug transaction that's going oh i understand that and with regard to the pain of taxes nobody nobody filed to tom tom davis actually turned for he could have taken this money and reported it he did not but no one made him do that so really the activity must exist to qualify a defendant for an enhanced it was there a hierarchy even eve and i recognize the distinction between the conspiracy and  practice but was there a hierarchy in the practice which is what i was driving you how it was just it was just three chiropractors having a practice to get well there were just too quiet chiropractors there were t not but the two recruited him they recruited him into this enterprise they sat him down and said here's how we do things here and he said fine by me that is true ok and recruitment is one of the factors that we're supposed to consider it is one of the factors yes i was back to the hierarchy and the control because your argument is really built on control and so when i say organizer doesn't require control and i cite these cases here's here's the line as far as hire and judge writing a majority publish opinion nothing in the guidelines requires that an organizer must exercise some direction or control over underlings in other words it's enough  and you have these two chiropractors at one time who come up with this game come up with this method they organized and then they when the new public comes in and they explain to him here's how we do things and they recruit him into doing this why is that not enough to say plus to a firm organizer an organizer along the law of conspiracy and i'm a i'm at it a shot at my three minutes here but i will say the law of conspiracy doesn't take much and the government argued that it can be informal it can be very nothing has to be written down nothing it can be implied to bring davis into the conspiracy is one thing he joined that set once he joined then we look at the enhanced meant for purposes the sentencing it's a different analysis once he was in it was then and once he was in they all three just did their thing they divided the money will he they sat down when they could they looked at the money and they went then went their separate ways so that's basically what i'm saying you people join conspiracies in a number of ways and then they're in once they're in the question is how does the conspiracy behave after that once they're in the conspiracy is still a conspiracy that is true and the fact that nobody has to have their fingers broken with was that doesn't make it less a conspiracy or less a leader will manage or we're going to call it is important to note that the government or the trial court in this case found a supervisor or manager did not find a leader organizer those are in the findings and if there is any distinction laughed between those four or roles and i would argue that they all require control supervision and hierarchy but to that extent it is different from the establishment the conspiracy to be did the conspiracy how was it carried out how did it happen how did it will you say the conspiracy stops be to conspiracy no once everybody agrees on how to divide the money know the questions how do the conspiracy operate and was the good morning ma'am please the court my name is alex robbins appearing on behalf of the united states i'd like to start out with court's permission by touching on three issues of the court just as my calling about and point the court to some places in the briefs in the record that may help answer those questions the court asked my colleagues there at answer counsel i'm genuinely troubled about this case because in a typical conspiracy you've got the drug conspiracy you've got the guy in somewhere who gets the dough or the goods the other guy who controls d sales there's a there's a by the very nature of the quote business and there's a hierarchy there's the boss there's the dope there's the carriers there's the whatever this is two guys practicing a profession they decide to cheat on their taxes it's not saved let's say the three and he come to say that we cheat on our taxes and he says good enough for me so he's going to cheat on his taxes too now you got three guys cheating on their taxes you don't have to have a manager manager you don't your in your hypothetical into money not have in your apathetically you don't need a manager as to the original two and that's why we've focused so much on davis as distinct from carlson and so i didn't want to flag that for the quote just you have your as i understand your hypothetical jack and jill of the original partners and then bring judge phillips into the partnership or says no i'm not going to do that all that cold i don't want to put in the very least that we're looking at as an acoa to tempt crime i think in that hypothetical jack and jill guilty verdict on the conspiracy count we are dealing with a conspiracy there was a meeting of the minds right yes i think that that is sufficient for that subsection c textually an organizer certainly owner manager and supervisor as in this case if the original two partners are one of the original two partners in this case the defendant on an ongoing basis maintained the records of how they were dividing up the money maintained physical custody over the money that was the other to the tax cheat operation and they have a neutral stake holder hold cookie jar one of them happens that jar in his office versus the other but they all have equal access to the jar do you in that situation do you have two managers and two supervisors just among the two of them assuming they're there convicted of this conspiracy does one of them i the sara lee have to be in the hierarchy i think not necessarily i think your question is which is different from this crisis and much closer to that line interesting because they're giving it to a rd party rather than one of them peeping at themselves right now but let me continue my hypothetical so now jack and jill are ret running now alice joins in she's says ok i want to be a one of the i'm happy with this conspiracy i'm saving a lot of money so she happily jumps in on the on the plot are these two birds assuming you're correct are they code managers and coast supervisors are they both going to get the enhancement those are two separate questions i'm less sure about whether they're both managers o supervisors under your hypothetical they will get the enhancement both because because they're both organizers under subsection c who brought the rd person into the scheme and that goes to one of the issues i want to hit on which is this that the organizer component of the subsection c and hence me i would refer this court to the apt case and to the levin case both of which we said in our brief recruiting and instructing is enough actually  eleven cases even four for the four level hands but in this case we don't we're not worried about that but bringing someone new scheme recruiting them and instructing them as to how the scheme works yes is enough would be enough for the organizer and hence meant even  one of them not d in this case the defendant got the enhancement only carlson in his sentencing did not get the enhancement no one proposed that the probation officer didn't it was just not  district court's rationale in sentencing carlson to a well above probation sentence when when i think probation i'm not positive at that and certainly the defense was asking for probation  get the same advancement the same certainly yes if you have two managers are supposed to organize as they can at the same and handle it with demands in this case that they both know i said they did they did not karlsson did not get any role in hansen in his sentencing we went to check that obviously garamond the defendant in this case so what did germann do that carlson did not care men kept the secret records notebook he created the secret records notebook initially because he didn't trust carlson and he kept track of themself the exhibits a trial when the prosecution had witnesses look at the book or i think almost all certainly the vast majority of them were in germans handwriting and he kept custody of the cookie jar and that was one thing i wanted to hit at the beginning of this my colleague i think was mistaken in saying in response as court's question who kept the record she said all three at page four of her opening br says that he kept the records and the secret notebook that's not that's not think i think it was a notebook that was reprinted records on it and someone kerman wrote by hand he testified at trial when asked about this secret on the front of the notebook about record so the entire a fair amount of discussion of what exactly the cookie jar looked like it and at trial how imprecise of issues are it do you concede that there is not a waiver of this particular argument no we don't but i want to i want to clarify i think that's actually the trickiest issue in this case and i want to clarify that as we understand the defense argument and certainly my colleague can clarify this the defense has two arguments one is i think the district court didn't make a sufficient finding didn't say the right words right not just that and that what the discourse found was that the court court finds that germann was at a minimum a manager or supervisor in this criminal activity the defense wants the district to have said even if there was a sufficient finding it's clearly erroneous under this record and i want to point that out as well my colleague said that it was that this is a to novo review standard i think that's wrong i think page seven of her opening brief correctly sets out the standard review as clear so there's two different issues here what we're saying is at the very least the district courts finding on this factual issue that is now before the court the manager or supervisor factual issue is more specific then what the defense said at sentencing to flag this issue if at all so at that so there are two options either one of which should lead this court to affirm either the defense  just once referring to either subsection failed to preserve this procedure or adequacy issue in which case plain error if you applies and under the mark has case or alternatively if the defense did preserve the issue of that business so it's a little bit different than the drug case it's more like this you have an actual brick and mortar business and then illegal activity happening within that business and we agree with the defense but the question here is not was germann a manager or supervisor in the business it's was the manager a supervisor over the criminal activity that's that's absolutely right and we think the dischord got that right and and that's what we've been basing arguments on we're talking not about who was dealing with the tax apparently off the staffer who's doing payroll one in this case the relative difference in levels of control between leaders and organizers reflected in subsection a in managers is less significant than for large criminal enterprise under thirty three b one point one you really when you have twenty two people saying hey let's cheat on our taxes that one isn't necessarily manage the other they're both agree inclusiveness of subsection c as the as the notes characterize it helps the government in this case at the point being that when you're dealing with a small organization the lines between leader organizer at the higher level and  manager or a mere manager supervisor at the station that we agreed the defense makes reveals both automated and we agree with that there's a distinction between those two levels most of the defense cases are higher level ones but that distinction becomes fuzzier and less important in a smaller organization it is the st paragraph of three b eleven dollars tells us that enhancement serve designed to afford greater punishment for relatively greater responsibility so if you have fines one of those holding the cookie jar one of them makes more entries in the book than the other one it doesn't strike me on its face that one is bossing the other one around one them is is leading the conspiracy is that we're they're both in the cookie jar dipping in at the same level and getting the same benefit of the bit of the  criminal activity it just seems to me you're searching for a manager a supervisor what in fact it's three guys basically all cheating on their taxes but the go back yonder to my answer to your hypothetical the distinction is much clearer when you look at the defendant versus davis davis was a new partner he was the junior partner he came in out of an two levels down so he was a level eighteen he'd be a level sixteen which i believe would take him to twenty one to twenty seven months so this ends he received because twenty four months twenty four months would still be in the middle of that range but again molina need to vacate remand for that because the sense would have come up the same way there is no prejudice in that case thank you someone's the board meant to hand in the scheme does doesn't even matter don't we just look to the least difficult to prove and that's an organizer and so who cares about a leader there's about supervisor or manager there are all of  that he was a manager or supervisor and there was a hierarchy among three conspirators the court made no finding that guerin had control over davis and he made no finding that the criminal activity was otherwise extensive we don't know what case law the the judge applied so it is not just me i don't think the judge understood the difference between what the beijing was trying to do which was expand this the participants beyond five people and distinguish between a manager of the business as opposed to the manager of the conspiracy this enhanced meant looks to the hierarchy among the participants