role provision of the united states that singh guidelines and erred in denying mr lopez diaz request for a minor role reduction by failing to apply the correct legal standard mr lopez he has role in the offense should have been compared with other participants in the smuggling activity before you get to that counselor answer question which is pretty important to me and that is as i read rojas malone and then my be a knight oprah duction of that name i don't know what it really is but it's r o j s m i l a n as i read that it says a district court finding that a defendant is not a minor participant in the criminal activity is a factual determination reviewed for clear error you agree with that i do agree with that your honor so then we're really looking at whether this district court made a clear air in its factual finding that's actually not what what i'm saying in iraq has me on the court over just a minute are we looking as to whether your client was a minor participant or not we're looking at whether the court you are  we're looking at or the your client was a minor participant we're looking at whether the court used the correct legal standard in making about determination factual findings are subject to clear air but well so just tell me what is the difference between fining to minor participant or what you're arguing because this is very clear a defendant is not a minor protest but the district courts finding on that is a factual determination so what i'm arguing that the miss applied the law he misinterpreted the guy was the law all right if he put the right law there correct he employed the improper legal standard when looking at how to apply the minor as i understand it it's an abuse of discretion even the application of the guidelines the application of the guidelines to the facts is abuse of discretion and so therefore that's what you're arguing that is not what i'm  misapplied the standard of how minor role is to be interpreted as if he misapplied word abuse of discretion he applied the standard which was in the guideline he applied that to these facts if that is what he did wrong that's abuse of discretion if the facts are wrong it's clear or but whether the district court interpreted or applied the guidelines correctly is a did then applied what that law was to facts that were in the record and it's no question that if i look at that rojas molong the finding of a minor participant is reviewed for clear  so therefore i'm having a tough time understanding why i should give pretty much difference even if i would say it was an application of the law i would still give pretty much deference to the district court your honor where i'm saying that the district court erred is that when looking at the minor role provision and evaluating an average participant the district court judge evaluated mr lopez the as in terms of other average couriers and not in terms of average participants in this criminal activity well ok i think you are but i but i think what i'm also struggling with his sort of cherry picking things in the sense that it's the defendant's burden on minor role right that's correct ok so then the court stuck with whatever is before the court and and if you look at clearly erroneous and a factual determination why is it clearly erroneous here for the district court the defendant have access to a house where drugs are prepared know some facts about the organization how they smuggle drugs has a cellphone provided to him by the organization and has smuggled drugs on at least four occasion but your honor i think that the twenty fifteen guideline amendments are very instructive on how the sentencing commission wants those those facts that you're identified all right said the right it says all right they do set certain things out but it doesn't change the case law and the ninth circuit and you're arguing certain cases so we still have the case law and many of the things in the case law and i think that what judge smith is talking about are things that the court talked about here well what the court did was identify facts the court identified all of the facts that your honor just mentioned however the court did not go into the analysis of how does that affect what mr lopez the new the new guidelines amendments are instructive in that what the sense of the commission wants the district courts to be focusing on is what what did mr lopez the as know about the scope of the criminal organization well in all of those things are talked about here and so i'm struggling with the standard that i think all of the defendants want to put out here in i mean i was a trial judge you're looking at a trial judge here as well and actually there's a lot of instances you know where trial judges he's not say you know judge smith is an easier sentence or than i am and there would be a lot of sentences we could come up with different sentences and you still wouldn't be able to say that one of us was wrong you know i mean it's not and it's true that the amendment was trying to find more continuity here but the amendment can't change the law that already existed and the amendment can't make judge smith and judge callahan exactly equal and how we look you know exercised her discretion and so what i'm seeing here is that you know all of the defendants on various things are saying what if a defendant doesn't you know so what if a defendant and many of them don't want to don't want to talk too much about the structure here so they only give you certain things about that particular structure because they don't want to be a snitch right and so but if the defendant's burden so we're stuck on some level and all of these judges have sentenced a lot of different people and so then the first thing if they're if they're looking at different cases where someone was getting paid one hundred thousand dollars or someone like your client that may be admitted to having done this for four times there's differences in all of these cases but then the argument is that you're somehow comparing them to hypothetical people and so you can't consider your experiences with couriers in different cases defendants don't want to tell you anything about the can't just go ahead i know i'm taken some the kingpin and they don't want to say all of these things and then you're stuck with the facts that i've mentioned here and then you want to say than he was but i think what's also instructive to the court is what is yell out to walk away from the fact that he's done it three times before he is not but this that he did admit that but his role did not change in any of those instances he did not suddenly have more decision authority or obtain a proprietary interest in the drugs or in any way his role that if you've done it four times are you more minor than someone that only did it one time under the same factual predicate of everything's the same i think that's where the scope of the mitigating role guideline comes into play when we have minimal participant all the way from a minus one reduction all the way to a minus four and we never said that mr lopez the as was a minimal participant but we certainly said that he had a minor role in comparison to all of those involved in the drug smuggling activity in which he was involved what i do with united states versus rodriguez castro which says right on his face holding that the quantity of drugs may be sufficient grounds on its own for denying the minor role reduction i think seems to me the judge looked right where at the amount of drugs in this particular situation and said no minor role reduction because of the amount of drugs well your honor i think with the new guideline amendments that is in fact not the proper analysis the guideline amendments do seo think the guideline amendments change united states versus rodriguez castro i think they do change the analysis of what we can overrule that case as the three judge panel we have to go on back so you're saying that the guidelines and then overall says cases i think that's a tough that's a tough one to sell i think it's finding commentary and i think that the analysis when the guidelines change the unbinding commentary over rolls ninth circuit precedent i do believe that the case here your honor the supreme court does let me go one further supposing that i go with you go with you as far as you want to go and let's suppose that there was there i want to talk about a harmless or if i'm talking about a harmless there i'm talking about what did the district court do i read what the district court said  was pretty straight in what he said and in fact was very this is much i'm going to do not only this is much as i'm going to do but i'm not go give you the minor role word auction but after i don't give you the minor role reduction i'm going to talk to you about things that i think are important in this particular case and then after going through all of that he says i'm imposing a fifty seven months and it's so i looked at the minor role reduction and i took two off of the fence level and i said what would be the range if i took the minor role reduction cern's out that range fifty seven is the lowest value in the range of b to given you what you want after all  said about why they get there why is it not harmless error when he gave you the lowest value in the range of what you want anyway your honor actually had the district court given a reduction with the minus two that would have also triggered the roll kept it under one hundred one point three so the the plus two for methamphetamine would never have been applied as it was without the minor role and he would have gone from he would have naturally given him all the other things that he gave him anyway that would you say yes the government agreed to the safety valve the government agreed to the minor role and he would have received the acceptance of responsibility based on the government's motion  in the playground it was also the minus four for fastrack so i assume it is true the government recommended a minor role in this case that is true the government recommended that based on mr lopez the as his post arrest statement as well as his statement written statement provided to the government the i guess the big problem is when i'm looking at harmless error based on the case law i look at what the courts say is i look at what the court does  said no minor rule then the court went through all kinds of extra stuff to make sure that the court could get the sentence it wanted to impose going way below the range going down to a fifty seven months and it was interesting that when i apply the two level reduction that was the lowest value in the range that seems to me to same i mean haven't you seen judges think the sort of a little bit globally and say i think this is a point about this my match and how am i going to get there i have he wouldn't have to get all the other one steak sack and he wouldn't have to fast fashion the sense that way when he well under the guidelines is automatically triggered the guideline the cap going from thirty four down to thirty one in this case and not receiving the meth enhanced meant so his guideline range in that case would have been thirty three to forty one months and then had the court taken into account all of those thirty five fifty three a factors that your honor has mentioned it's very possible he could have received a lower sentence so what you're saying is eve fashioned those and in my book creating a record he fashioned those a good word he wanted to  he identified facts but then did not say what those facts mean in terms of what mr lopez the as knew and what his role was consistent with the analysis and and guidance provided by the two thousand and fifteen guideline amendments i we've taken about five minutes over but i'm going to give you two minutes for rebuttal because i think you're helping everyone else where you're at you're having and thank you for answering and you know i mean i think it will help the people that follow you to get an idea of the things that we want to talk about so thank you and i'll give you two minutes for rebuttal and we'll hear from the government good morning good morning and may please the court daniel zip on behalf of the united states your honor is for the last twenty five years this court has established a body of case law to answer the specific question at issue in these cases when does a defendant arrested at the international border bringing narcotics into the country qualify for a minor role reduction under three v one point two to answer that question this court has established a series of benchmarks or factors for courts to consider including the amount of drugs involved in the offense the number of times a defendant had done it before the steps taken including registering a car ahead of time and the amount the defendant has been paid well how does that does the imam change your case  it does not your honor that was the next point i was going to make is that the two thousand and fifteen amendments to the guidelines do not fundamentally change that body of case law in a way that would render what the district court did and the factual determination in this case to make that clearly erroneous what was the purpose of even well there was five essentially five separate changes that the commission made a number of those appeared to be intended to bring other circuits  in line with this circuit for instance the first one as far as what that act what's the correct comparison to make the court held that the ninth circuit in the seventh circuit had it right and the proper comparison starting back with webster  context the the commission did say that this was intended to provide uniformity and to essentially increase the number of times that it's applied but those five factors first of all the commission indicated that that framework was intended particularly for fraud cases and there's nothing in those five factors that's inconsistent with this court's case law on this specific question in an international drug courier but ultimately as a sentencing judge i mean we've got to apply the the proper legal framework but i think when and if you know if it's a clearly erroneous standard you could see something differently than we do but wh n that's correct your honor with different cases different prosecutors would recommend different things a different judges might view the facts differently and reach a different factual conclusion but here when it's clear every view the only question is whether the district court here made  plausible factual determination and that was in two thousand and fourteen and even taking that guideline amendments and looking at them retroactively and judging the court by those standards it still wasn't clear it was still plausible for him to determine that this of what the court was discussing the comparison that it made it described a certain latter of individuals and to describe the overall comparison that undertook in this case taking that specific statement out of context with defense argue suggest sort of lopped off that top half and didn't even get most of what that what the judge said was as a ladder with the average person being in the middle of the latter people of greater culpability of that much lesser culpability people love that right i just do that when when you can't know everything about the organization no one ever wants to tell you everything and if the defendant has the burden i'm i'm curious and how do you put you know how how can we reconcile all of this and not put behind your own experience where you see you know people in you know you can't compare to the hypothetical courier but by the same token when you've seen a lot of couriers how does a judge just like shut that out and  analysis purely to other defendants that are arrested as part of the case and in most of these cases there are no other defendant it's sort of the case begins and ends when the courier crosses the border so i think what the district court did here is all that he really can do and that's sort of compare this defendant against all of the participants based on the judges experience and based on what the defense as put forward that are involved in a typical drug trafficking event like this starting all the way down in colombia or mexico in continuing through into the united states and all the different parties that are necessarily involved mark my wife colleague on the other end of my bench  critical question to me i got all the president that we have in the ninth circuit lined up and i tried to see if this judge had made a decision based on that president through all  counsel right there so that she could have a chance to respond however now we have an amendment the amendment does not seem exactly square with our president though i think they changed the guidelines somewhat to mimic our president i don't know that it's exact has to our president for instance if i look at the case of rodriguez castro the amount of the drugs is enough under that president as long as the judge discussed the amount of the drugs is an independent basis we don't have to go through all these factors now we have in you have says three b one two he five factors those five factors are pretty straightforward as to what they require if it is retroactive as the government do can i get away with just saying well and follow the law as it was or do i have to adequately step by step go through the five factors to make sure the judge applied them directly well your honor i think two answers to that first the five factors as i mentioned before were indicated by the commission were particularly useful in fraud cases and secondly there's  no requirement that every time the commission changes a specific guideline as they do multiple times every year essentially that any time a court that applied that guideline would necessarily need to be reminded vacated to reapply the the changed clarification there's still a fundamental so wants to read all activity provision then i think the red eye is there it why did you cave why did you say montreux interactive you say instruct to act to give and then you say but you don't have to apply and you do have to apply your honor i think with the retroactivity comes from this court's analysis in the clear air context of what this court can and should do is look at these guidelines as they were changed by the commission's two thousand and fifteen amendment and apply those changes to what the district court did here was the district court clearly erroneous was it plausible for him to deny minor role in this case even in light of those five factors and if you look at the factors in this specific case that the court considered many of them are co extensive and lined up with specific factors listed in the amendment for instance the court in this case  noted the amount of plotting and premeditation and deliberation that went into this offense for a defendant who had done it three times before who had been involved with the organization for two years that matches up with what the commission said to look at the how much the defendant understood the scope and structure of the offense how much planning and organization the defendant had and then the fact of the amount of drugs in this case again matches up with the commission's instruction that court should consider the amount of responsibility that a defendant was given performing acts ok unless you have some the big another question that i think is important for you to address what do i look at when i decide whether to apply harmless error analysis here i mean i tried to outline what i looked at in trying to determine if this was harmless error if i say the district court was wrong have i got three man this or is there a harmless error analysis which can be applied which would say still doesn't need remapped i'm not aware of a harmless error standard in this context i think so how would i then apply the harmless error standard in this case i think if the court held that district court in this case was clearly erroneous and denying minor role i think i would agree with defense counsel there's a number of triggers involved in this the roll cap plus two from methamphetamine and the minus two from minor role would ultimately be a significant swing below what the court so i did after a man if the court found that  the if that question but what the court be open to let's say that you say that certain things were clearly erroneous but there were other factors that may be the court didn't mention there and then went back  still couldn't find my role well if if let's say the court didn't say something quite right here that that particular bit of particular fact could be looked at could be explained more in terms of the five factors that are supposed to be looked at with the court if the court was wrong here is the court can be wrong could never find minor role i mean could not deny minor role when it went back or no i don't i don't think there's anything in the amended because it seems to me the harmless error analysis that you're saying is that if if the court was wrong here then the court necessarily would have to find give the minor role when it went back held that it was clearly erroneous on these facts for the district court to deny minor role and yes when they went back and ok that's what the court would be saying is that you have to and then all of the other things are triggered from there correct you can't the court could not refashion the sentence everything he could be veterans and but i think that if this court instructs the district court that you are clearly erroneous and on these specific  you must give minor role then it wouldn't be harmless because under those situations there would be a seven levels wing that would would be below the fifty seven months of the court imposed here but the only way you're really doing us is the only way for the district court would be able to refashion is if we didn't review it under clear but are reviewed either under do novo review or abuse of discretion in a misapplication of the law then he could or she could the district court then could refashion the sentence correct isn't that what you're telling us clear role clearly erroneous there'd be nothing left but the district court would have to pose what we said but otherwise if there was some question of law involved that at that point the district court could refashion the sentence correct yes but i think fundamentally in this case given the amount of drugs involved given the two years of involvement given the three prior crossings this difficult was well within the range of acceptable factual determination and when it decided to do it then i roll that decision was certainly plausible in two thousand and fourteen and it was certainly the government came up with a minor role participant how then when you just said well the major players are never around they're never arrested they're in mexico there's someplace else was compare purely to the two defendants that were in custody in the single offense and said this one is not substantially less culpable than the other end of story and the court said no that analysis has to be broader and has to look at everyone in the criminal activity necessarily in these cases as i mentioned there's not often times the government in even the defendant don't have individuals that they know don't know can't point to specific people from the entire chain of the drug distribution network but what the court can do and what it did in this case is use its knowledge and apply its sort of abstract but an analysis of this entire ladder of participants that are necessarily involved when you have large amounts of methamphetamine like this and getting it from mexico in the united states dividing it up repackaging it selling it across the country and what that just recorded here is what really only the district  t the only thing they can do and that's to sort of consider all the individual participants factor where this defendant falls on that ladder of culpability and determine whether or not he was  sometimes because if the defendant has the burden to defend it doesn't give you more information then your district court is engaging now level of abstraction that is that the district courts fault if the defendant has the burden and doesn't give  individuals then yes the he hasn't met his burden and it's it's not the fault of the district  talk about the latter and if you don't tell him all the people on the latter are you can't get that much more specific you recognize that there is above and below people he talked about the latter but he refused to compare mr lopez the as to those at the highest end of the ladder and he  specifically said he was not going to make that comparison but you give him a name of who was on the highest we mr looked at not of the highest but mr lopez the as did actually provide judge burns with those who were above him who he was receiving direction from he identified one which was the person who recruited him who was the person who was most in contact with who made the phone calls to him directed him exactly where to go he identified those who were packaging the drugs he had and if i had the residence that he or not the exact address but that there was a residence where he went to and all of those people should have been considered in comparison to mr lopez the as just as wrong as me and states that the district court court should have considered his culpability relative to the involvement of other like actors in that case the court ruled that he should have that mr oxman then should have been compared to the l a supplier and the reno distributor and in this case the district court flat out refused to do so so that's the that's the comparison and the  area where judge burns erred in failing to make that determination and with these guidelines amendments the sentencing commission is trying to create some consistency i know your honor expressed to the government that there's an inconsistency when when district court judges are applying this min role provision but that's exactly what the sentencing commission wants to eliminate and what their studies have shown that this guideline is being applied in a manner that is inconsistent and they wish it to be applied more frequently specifically to drug couriers even in two thousand and eleven the set commission provided to congress their report with laying out the actual roles in drug smuggling organizations nine different levels with couriers and it's me are we i can't tell the clock has it been two minutes yeah yeah ok so wrap your comments then thankfully with careers of meals being at the bottom so these these roles have been identified by the sentencing commission and district courts are aware of that so with that i would write thank you for your argument to smatter will stand submitted