investigation that point being july th of two thousand and seventeen a search warrant was executed on his home and there was marijuana approximately two pounds found in the home along with some empty bags with residue and a and promise us my intention this morning us to focus on premises or excuse me a leadership role but if there are questions concerning the promise argument i'm happy to answer those as well the the evidence at sentencing primarily came through one cooperating witness and that when this was present during a phone call when she was out of state with mr moore in the kalo rosenthal had called him and said there was somebody at the house to purchase marijuana the specifics of the conversation from there are somewhat sparse but it appears that mr moore advise spouse saying your friend has shown up to pick up a folder where is it out would we consider well said the husband this case wouldn't you consider that leadership or an in charge control roar when he advises his wife where someone will there is someone came in and wanted to purchase something from me and i directed someone near me how much they were going to receive and how much to get in payment from the other person there is a connection between the person selling the the item and the person who's actually completing the transaction i agree to the extent that some person but we're not talking about some person in the facts of this case we're talking about paramour's who have children together who have resided together for some time the leadership dynamic is significantly different in those cases these are two people who are helping each other out more as easy case to to indicate that through the potential   think of which case it is i believe he was a farmer who grew was growing marijuana field and his wife was indicted but acquitted and in that scenario the circuit had found that there was  leadership role because of the directions to the spouse but the conspiracy involved in that case was considerably larger in terms of what was coming out of the promised us there were significantly more drugs  pled guilty to a drug conspiracy charge for being involved in trafficking heroin and marijuana and as a result of his guilty plea the government agreed  johnson challenge those and handsome and and challenge some of the offense conduct that the government had submitted as part of its offense conduct letter that he was not accepting responsibility and i think that this is especially trouble some in this case where the government submitted the offense conduct letter and then probation made their drug way determination based on the information in the offense conduct letter and then when the p s r was issued then the government objected to probation the chairman ation of the drug ways and not only just a minor objection but they indicated that the drug weight should actually be increased by six levels so we're talking about a huge increase in sentence here and that of course two guideline issues i don't think from my recollection that there was any agreement asked quantity there certainly wasn't any agreement as to the quantity that the government was seeking and that the district court ultimately the only one that lost acceptance in that process the real issue i've got those is one of just really the standard review that we apply which is that the the acceptance of responsibility determination title to great really really high burden to me so i'd like you to address really why particular determination is just so clearly erroneous that it just cannot in good conscience stand for your honor and i think that that's a very valid that's a very valid question and something that difficult to overcome frankly given the standard of review but if you look at if you look at the application no  a and while i acknowledge that it's not automatic the first the st circuit has acknowledged as i indicated in my brief the importance guideline of offense level and i think that with respect to whether it was clearly erroneous in this case even though it's not  it's not guaranteed by any means and even though the burden is on the defendant to show that he's entitled to three points i think in this case where the district court punish the defendant for objecting to something that number one is the withholding of the points due to the objection what additional effort was placed upon the government generally the rationale for not doing the additional discount and sentence is objecting causes the government to have to expend additional five witnesses were offered for the purpose of drug quantity some of them did testify about seeing the defendant with a gun at some point but those witnesses were primarily there for drug quantity because that was the objection therefore it was the one that had to carry the water so yes mr johnson did press the government to proved up that drug way at sentencing but it could have included that evidence in its offense conduct letters submitted to probation and then i think that there would be a much greater argument g was in large part evidence that was not contained in the offense conduct letter and included in the p s r so with that i would like to reserve the rest of my time  good morning minute please the court on cliff cronk counsel i came prepared to address every issue raised by the defendants and so i will address some of them even more than what they've addressed today i'd like to start with the last statement by mr naman concerning angela johnson's acceptance of responsibility mr johnson pled guilty to conspiracy to distribute marijuana and heroin his plea agreement required and the factual basis for the police as well as as what the necessary statutory requirements included an agreement or it an admission that he distributed least one hundred grams of heroin when he came to sentence when did a plea agreement and your honor asked if the government was limited in any way as to what we could argue in drug quantity and what the plea agreement said about that and every one of my plea agreements except for a very small percentage where we agree on a specific drug quantity every one of my plea agreements the ones i write the ones that get approved by my supervisors in the ones that these defendants sign also say that we with the government has the ability to prove additional drug type and quantity above the minimum that the defendant is mitt admitting for the purpose of the plea so mr johnson would not admit to more than roughly one hundred grams of heroin it was established that for multiple years more than two years he was struggling heroin on a daily basis two and i believe the witness said he'd found sixteen customers of mr johnson the judge made it perfectly clear that he had not accepted responsibility because he was or i'm not sure that the language in the acceptance of responsibility no notes or commentary say frivolously contest relevant conduct she specifically found that he was not admitting to relevant conduct as he should and she specifically noted that he was denying possession of a firearm in the face a substantial evidence that he had in fact  also i'm just a question for we leave that i found intriguing johnson's argument that because the drug quantity established in the or set forth in the pre sentence investigative report was different than the drug quantity asserted by the government and the government was searching a greater quantity that and i think i'm summarizing is may not be exactly as words but as long as you made it to the  original letter the one hundred grams that then the burden sat on the government and that merely contesting the government's evidence is there or not except it is not a denial of accept there's not a failure to accept responsibility because the burden rested on the government to prove the drug quantity because they were contesting the end objecting to the quantity in the p s a are which i find that's an interesting argument one frankly that i had really spent a lot of time thinking about but i wonder what your response to that would be well my response st is the government is burdened with providing an offense conduct to the defense but we're also providing all of the discovery to the defense which includes obvious statements of the people who've already identified mr johnson as their supplier and of course just because it wasn't in the office conduct letter if other witnesses come forward or other evidence is developed between the time of the plea and the time of sentencing the government is not barred from putting that on so you're absolutely not what i thought was intriguing was the argument that somehow because you have the burden that then just merely substantial drug case involving some pretty serious people carrying guns and we seized a lot of guns and and what we're talking about is a group of risk takers these are people who take risks every day and they took mr johnson took a risk when he decided that all he was going to admit was that he conspired to distribute one hundred grams of heroin and hoped that the government would not prove at sentencing that he actually was distributing multiple grams of heroin every day for you for years and i believe mr neiman's argument is something like if the government submits in our friends conduct letter they're stuck with it and i don't think there's anything in the rules or in the sentencing moment a couple of points i was sure i was going to need very much time today announcing on using more than i expected but with respect to the firearm mr naman did not object at the time the pre sentence report came out that this was mr johnson's residence where the gun was found and it actually wasn't objected to in his sentencing memorandum he did not raise in his sentencing memorandum that where the gun was found in the basement in the dirt was not his residence in his opening brief he did not argue that the government failed to prove that this was mr johnson's residence but and his reply brief he says the government has overstated the ca with respect to his residence this was and we did not prove that it was mr johnson's residence well the reason that we didn't put on additional evidence of mr johnson's residence is because a paragraph one hundred and thirty two dollars which is not cocaine from him by a reliable c i a search warrant was obtained for angela's residence in the four hundred block of th street in davenport iowa prior to the search engine that was observed in front of the residents but retreated into the house when uniformed officers arrived in response to a disturbance call it goes on to later describe that the residence that's previously been described as angela's residence state found a gun in the basement you know the rest of the story is that angelo had dirt and on his pants cobwebs in his hair and a gun is found down in the dirt with a cell phone and a phone and from print on it of his the record is substantial that that firearm when you consider a confidential informant also in the pre sentence report identifying that he had a gun when he ran into the house and told the police that that he carried a firearm on that day but there's also substantial evidence that he carried a firearm on other days at other times and specifically one of the witnesses christopher shops was asked directly by judge her do you gun we have police retrieving a gun from his residence and the judge of course specifically found that it's not clearly improbable that the gun was involved with drug trafficking especially in light of the fact that one of the people he was buying or was selling drugs to witnessed him in possession of the gun with respect to mr moore in his brief he says that there was no evidence of control from the home and i found that interesting because yes there was only one controlled by that was made and went into the home got the pound of marijuana him get the pound they just before the deal happened the pre sentence report the informant so we know that he's selling out of the house he says next sentence it was not the place transactions occurred but the record shows that that at sentencing he admitted to mr turnbull's stood before the was selling the marijuana out of the hat out of one thousand two hundred and twenty seven dollars jersey ridge road and she was selling it also says she was selling to his customers when he was unavailable or out of town so that's a kind of a double whammy there  st of all she's selling for him and she selling out of their joint residence he noted today that this is different because they live together and they have a child together well i want to correct the record on that  report indicates that they did live together at one thousand two hundred and twenty seven but they have no children together this is not elevated to some sort of a different situation because this is a spouse with a child living there together as a family they may have been living together and her child may have lived there but that doesn't exonerate him from his responsibility not to recruit other people into his drug business not to have his significant other or anyone else selling for him and that's exactly what he did now the court has the ability under three thousand five hundred and fifty three a factors to vary downward if the court feels that the guideline range is too hot and i believe mr moore got us a variance those are the types of arguments that relate to well how serious was his leadership role how many people really did work for him but in this case those are accounted for by the ultimate sentence by the court the court isn't able i don't think to say well i'm going to ignore what is factually accurate that she was selling drugs for him when he was out of town and that she was selling drugs out of the residence they clearly had been selling pounds of marijuana ounces of marijuana  one pound to sixteen ounces there's plenty of evidence in the pre sentence report that he was selling ounces of marijuana so there were nine empty one pound wrappers and two pounds hanging on the closet door and there was digital scales and packaging material the evidence is overwhelming that he was maintaining a premises and it's overwhelming that he had employed another person to sell drugs for him i don't really have anything else to address i have known each other for quite some time and again around these battles will never never underestimate his ability to personalize legal arguments i think it's fascinating that his focus was on the promise argument i fully acknowledge that house is the source of those sales when they're not it is similar to ghost of frankly which is we can't be certain exactly how many transactions what's happening out of the house now storage certainly there's evidence of storage in this case but storage can be fairly contained and not the primary purpose of the home i think the problem with no it it really blew the lines of what primary purpose is about but i think that's why we have to go back to what the original purpose of these enhanced events are in when mr cross describes mr moore as employing mickael i think that danger to the community that's where the weed or ship ruin hanson comes from and i would argue to this court that that is not what this relationship was between mr morris and mr rosenthal they were he was not profiting from her they were shared in that they were shared in the home they were shared in the business that is not we are shit that's relationship  time and time again in case after case before the circuit there required abit and is about a dynamic of control in underling in fact and i damn seven a leadership in this relationship it's that he had a relationship as part of that relationship the two of them used marijuana the two of them sold marijuana mr moore implied guilty to having sold marijuana i would argue to that district core misapplied the leadership role in this case by applying that three level enhancement even though there was a variance that variance downward become variance the premises being over represented and there is no way for us to tell whether the district court so excepted that argument on promise but applied the full three levels concerning the leadership role for all  those reasons you are on behalf of mr moore would request that this court reversed the sensing that was imposed in this case and re man for further proceedings thank thank you judge and i wanted to address an issue that you were speaking to mr kronk about and that's specifically with respect to the submission of the if that's conduct letter when the offense conduct letter from the government forms the factual basis for the p s r it and then the defendant thereafter challenges information that is in the p s r that's derived from the offense conduct butter wouldn't hansen's that are applied  after reviewing after probation reviews the offense conduct letter it creates a perverse incentive for the government to load up that offense conduct letter with as much as they possibly can that wasn't contemplated by the plea agreement knowing that if the defendant challenge that later at the time of sentencing then he could risk losing the acceptance or responsibility now we want to talk about the risk taking the government when it's submitting its offense conduct what are its bearing no risk because if it doesn't get the enhancements that it wants or it doesn't approve of the drug weight that it wants it loses nothing because it didn't agree to as part of the plea agreement but if the defendant does all the sudden he's the one that's assuming the risk so when the facts of the case as they are to be determined at sentencing are submitted in the way that they are submitted then it places in unfair advantage on the government and against the defendant when and it prohibits him from actually challenging the government's evidence at the time of sentencing and for those reasons and and the reasons stated in my brief we would ask the court to reverse the sentence and r