from the papers filed in that case as well as the transcript that the district court didn't consider any of those factors specifically the district court never mentioned any of the minor all fact i mean of course you know he doesn't have to i'm not i don't mean to interrupt but your time's ticking of course he doesn't have to and it was in the papers so we assume the judge knows the law so what's your response to that well i think that i would point the court to read  obligation to explain why it would not act they can also hear both parties gave extensive discussions of how they thought those factors played out and the court listened to all that and said well i agree with the government's analysis on those factors so why isn't that i'm not well i think and specifically on the sort of hypothetical participant the court said well if you look at it one way he's not a minor participant because of his extensive previous involvement and the other factors and then he essentially says but if i'm wrong about that i still come out the same way because of his extensive participation in this conspiracy so i guess i have trouble seeing that the court didn't consider as opposed to a groupie well i think two things i think first at the conclusion of the court's analysis what it what it did was it went through a number of participants and said that even if i were to consider them i don't know if you would have been if i would have granted them when it will just so right there if i and i'm interrupting again but right there it strikes me that i think i agree with judge gregory that we assume he knows the law and it was extensively briefed in this case it was an oversight but what if he says something that's contrary to the law and that's that that's my concern because after all this amendment was pretty recent at the time and we've had to wade through a number of these cases to to determine whether or not the amendment was properly applied so i wonder in this case if this really was a hypothetical defendant situation after all it wasn't a pi was there were two named individuals if the judge says something that indicates that he's harkening back to the pre amendment case law which of course says quite clearly that we don't consider hypothetical defendants is that something that would be enough of a hook for this to be reconsidered well i want to make sure that we're not confusing the issues because there's two distinct issues going on here the first is whether the district court considered the mind of all factors as ye again and i don't i'm just trying to keep you within your time limits there so you can get to the issue so the question the judge did ask a statement the judge did make suggests that he's harkening back to the pre amendment and i wonder about castro and then you look at the facts underlying the case of internal labor they're really not different counsel i just want to get you to answer my question so here's a question is this was he right does this case involve a hypothetical defend factors and then after considering those do relative culpability analysis i think the five factors inform the analysis by looking at you know the scope and structure of the defendants knowledge of those and so what did the district court to hear that you don't think then some additional factor and based on that this court was you know affirming the denial of minor role what should the court have done i'm just trying to understand because you say you have two issues and one is whether he actually did apply you know the factors but i think the other issue is a lot more interesting to me and i'm trying to figure out in demanding hypothetical individuals or interpret that the law now says is that we don't consider hypothetical individuals was the court correct no because when the term hypothetical participant i think referred to other districts that were taking s right there's the hypothetical defendants he wouldn't be applying the factors at all so it's our position that in terms of a hypothetical participant the district court was correct not to look outside of this particular criminal activity outside of the strip that's not what happened that occurred defendant is well what role has milan instructs is that where there is sufficient evidence of other actors that the district has to consider all like the participants right and you just i just asked you the question about whether these two that he identified got that recruiter who by the name of peter and kate and what i was trying to get the court to do was consider other likely actors for example the distributor of those drugs we've got a defendant who was being paid one thousand dollars to import two hundred seventy thousand dollars worth of drugs and he was delivering those drugs to someone in the united states that's a hypothetical now you are talking about hypotheticals it's great that this defendant didn't have the ability to have knowledge about beyond the two links on either side of him in the chain right well it's our position that the district court took the view that it wasn't allowed to consider a you know a potential distributor of those drugs or supplier of those drugs and then i read that the court is having done exactly that in the alternative and i know that they love the way that he phrased it was i don't know that it would be any different but i think it's a polite way of saying it wouldn't be any different because of the fact that he had multiple roles and was a very large transaction and he was the owner of the car i'm going to try to reserve one minute for rebuttal so got about thirty seconds here but you know ultimately what we've got is a situation where the government with you know the defense counsel did raise the factors and tried to point to other participants the problem is that the  district court dismissed those issues without explanation and then relied on the reasoning of the government which pointed to ninth circuit factors that's the language used that are nine but this guy hadn't yet decided can tearaway of us of a so we know that the government was hearkening back here from the government good morning your honor is may please the court emily kieffer for the united states the district court in this case did not abuse its discretion in applying the final roll provisions of the sentencing guidelines they considered did not exhaustive list of factors in section three b one point two and it also properly compared the defendant's role to that of other new participant is it really and that's right i think for me is a the most interesting issue here because it seemed like the district court declined comparing mr dia's to other individuals in the criminal activity because in the district court's view that he thought he was prevented from considering hypothetical individuals and so i guess my question for you is it your position that a defendant must pacifically identify individuals for those other individuals to not be considered hypotheticals i don't think that the defendant has to identify those individuals by name however in this case i have a couple of responses to your honor's question first the district court here on your seventeen did identify with defense counsel the two known participant here peter and rodriguez and then on your twenty two the district court expressly says there's no doubt in his mind that the defendant or diaz is not a minor player relative to those known participant counsel so in your view is that is the government's position of the two that he identified are hypothetical defendants or not they are not hypothetical defendants i agree with you so so let's set that aside yes so is so didn't the getting back to judge mcgee his question is i think we're bothered about the same thing i don't think you need to convince us that we assume the judge knows the law and that the judge apply the law and this case there was a pretty extensive x in the briefing a pretty extensive analysis of the new factors i don't think yes to says that say it into the microphone but what if he says something into the microphone that that seems to be hearkening back to the pre amendment days do we need to worry about that i don't think you need to worry about that and there are a couple of reasons why first the amendment resolved the circuit split in favor of the ninth circuit's view of the case law so by the harking back to preeminent ninth circuit case law the district court was following the sentencing commission's view and right but it didn't get more than on the amendments are clear though you don't get that i mean that you don't have to name a name or just because there are hypothetical you don't hurt that does not go against the defendant right i'm sorry honor i think that i mean it seems like it set out a structure of determining what was the criminal activity who are the likely participants but you don't have to actually name it seems here that the district court was very focused on the fact that he could only name those two people well if you're a minor role that means you're going to be low in the chain and you're not going to know all the names of all the people involved either at the front end of this whole criminal activity or at the back end of the criminal activity which he claims he's at and so how do we use that against him i don't think that's what the guidelines of speaking in particular of the amendments envisioned in fact that says to the count it says contrary your honor my reading of the guidelines is that the circuit split was resolved in favor of the ninth circuit's absent not all they did ok that's not all they did if they wanted if this commission wanted to just resolve the circuit split it could have done that by saying hey here's here's the correct comparison group it also said here's a list of factors and this is exactly going to the nub of my point it resolved the circuit split in favor of the ninth and then it gave us new factors that need to be considered that didn't exist before so i don't think you've  that right all you've said is that that that after the this amendment we're in pre and in other words you're suggesting that the ninth circuit law doesn't change but of course we do have to ply those factors yes your honor so i think that as your honor noted the district court did effectively apply those factors because it considered the parties arguments that address them and then compared the defendant to the other known actors and the right and so right there right there he was doing that i think and so for me the hang up is and then he says oh i can't compare to hypothetical defendants i don't think these are hypothetical defendants that's my concern i'm sorry your honor may i clarify which are the ones that you do not believe are hypothetical the ones you and i just covered peter and the two he could identify yes and i think the district court was on the same page that those were not hypothetical defendants how do you how do you rebirth the court says you are twenty two so on when i look at the whole thing then the crucial question is whether what he what the court means is i come out the same way because he's just saying earlier this guy's not a mere courier he's done this three times he knows what he's doing he's highly educated use gone through all this and then he says one way of reading it is i come out the same way and the other where reaming it is i'm not sure whether i can come out the same way so how how should we read what the court is saying there i agree wholeheartedly with your honor's interpretation i think it's an alternative analysis that the district court was conducting and the reason for that is the district court referring to the ninth circuit case law the ninth circuit for example expressly rejects the idea that a drug trafficking defendant can point to some generalized network of drug traffickers that such an argument is insufficient well that's not how i read sounds like that's a third way to read more into court so i have i guess i read it as saying ok i know i'm supposed to like a pole structure and if i do that as an alternative way of walking up this i'm still i'm still in the same place because this guy was not america earlier he just said he's not i'm here courier yes exactly your honor and that this was the same near courier was one of the reasons that the court in rosa's said that even comparing the defendant to a larger generalized drug trafficking scheme the defendant still was not a minor player because he was not simply a mere courier just as the defendant in this case was not simply a mere courier he had been paid for prior activity he had educated another person on the process of going through the port of entry he had his pay reduced when that other individuals drug load was lost which further suggests that this was not some sort of informal agreement with a friend but rather something that was recognized by the person who was paying them as a formal agreement where he was participating formally in the drug drug smuggling activities i guess i'm just one of the know your take on what is the obvious meaning of actual and does it will it always require the level of specificity that it seems like the judge especially in the colloquy that was taking place was was requiring i think the nine that this court's case law is clear that the defendant does not have to identify the other participants by name but what this court has said is the district court only has to consider those other participants if it finds that there is subsist that there's evidence that they exist so if there is evidence that the district court finds reliable that these other participants exist then they would be the proper basis of comparison in this ca n and they'd have to consider the factors and that's and the amendment listed like eleven different possible individuals who could be involved in criminal activity when it comes to this i think there might be some confusion between the amendment and the sentencing commission report that was authored in two thousand and eleven the sentencing commission report that was authored in two thousand and eleven includes a list of individuals in appendix h there are approximately eighteen individuals listed amendment seven nine four to the sentencing guidelines includes no such list amendment seven nine four simply talks about the duty of the district court to consider other participants and then points to this court's case law as being the defining case law for determining whether those participants exists and this court's case law is that if there if the district court finds by reliable evidence that there are other participants then the district court should consider the defendant's participation relative to those other participants but here the district court did not find the defendant's mitigating statements reliable and when it looked at those undisputed facts that w before it it found relative to peter and to rodriguez the defendant had not established that he was substantially less culpable than the minor average participant and i would also note for your honour's if you go through and accept the defendant's view of the case law and view of the facts even if you did that on page ten of the defendant's reply brief he identifies six individuals if you add those to the two known individuals who have a total four of those individuals if you go by the two thousand and eleven sentencing commission report paan which the defendant relies are more culpable and for are less culpable which would put even according to the defendant's own sources the defendant smack in what the district court said was that it knows that there are hypothetical participants out there but it knows that according to one through his i can't consider those what the district court meant by hypothetical participant i think still remains unclear and i think that  the district court you know needs to make clear that it has identified and applied the correct legal standard the district court didn't make a finding that there was not going to be someone who's going to receive and distribute these drugs and i think if  look at the facts of rojas me on we've got a defendant who made a post arrest statement stating that he was picking up the drugs they picked up the drugs from us angelus and was delivering them to an unknown person in a parking lot in reno and the district court the ninth circuit remanded so that the district court could consider all likely participants if there is sufficient evidence here the district court didn't make a finding that there that these other participants didn't exist rather it applied the incorrect legal standard and that's why we're asking this course this court to reverse and  need to make a finding about the existence of participants and participation of other possible actors i'm sorry or have we ever said that district courts need to make a finding about the existence of the other actors know what the court has held is that where there