please the court train robinson from the six are good clinic and for the appellant chaser as all its electors are two minutes of our time this morning for rebuttal your honors i have two arguments to present the evidence was insufficient and the conspiracy instruction error was not harmless my co counsel will present our obstruction handsome an argument st your honour's the government did not establish the knowledge or agreement elements of conspiracy it presented a single transaction where m picked up a bag of fake drugs at the instruction acting through mr and under united states against gz this mere transaction is not enough to sustain a conspiracy conviction something more is required like prolonged cooperation possess case with conspiracy grafted on but without the sufficient facts this court in deeds teaches what facts are necessary to infer a conspiratorial agreement from a simple transaction we know here  was just one day there's actually a evidence of a recorded phone call at four pm where christian was speaking with duran that there was still no agreement and he said they were still looking for somebody to pick it up a mr mr robinson and a conspiracy when there's an agreement the object of which is a and a lawful act when the person buys into that at whatever point they agree to come they no your honor they don't need to come in at the same time but with a decent ham from this course stablished that there must be pro war and coordination is some sort of interlocking interest beyond the mere sale this is the buy sale doctrine of this court and all four is relevant in this case but if you look the united states against ham it was also relevant back ace but ham said the evidence cuts both ways turn that case in the government's favor was the fact that the relationship was both exclusive and ongoing and that's exactly what's lacking from this case we know it was not an exclusive relationship because there's text evidence from christian that well last time somebody else knew just where to go and knew just what to do but a result of us was not having always did not know he went to the wrong hotel so we know this is not an exclusive relationship and more importantly there's nothing ongoing here this gets back to the true long coordination and ham there was an ongoing relationship agreement going established method of payment there's no evidence of something like a fronting arrangement which is an indicator of mutual trust which is one of the deets factors but just a good one could consider that because of the small mo small amount of money is relevant but it doesn't establish that there was a fronting arrangement there was no exchange of this money there was no established method of payment if the theory is he was mr results was to pay during that money he would have left the money in the van where he picked up the it and he's an individual and it's there's nothing incriminating about him having cash there was no exchange of this cash or evidence that he would exchange it if there if that would have been the case he would have left he was there was opportunity for him to leave the cash in the van where he got the drugs or something of the like but returning to the detractors in addition to there not being an established method of payment there was no standardized transaction gone wrong i see my time is short if i could just spend a moment talking about the conspiracy instruction air because the government cannot establish that that air was harmless critically the the burden on sufficien flipped on its head for the harmless error analysis because the government must establish with certainty that the air was harmless the cannot do that here because the reasonable the lack of the reasonable foreseeability instruction took away an essential jury element if i could just rewind for one moment everybody agrees that the court charged the jury with the wrong instruction asking you to find the conspiracy wide amount instead of that amount which was reasonably foreseeable to mr us all as the government conceded that the page thirty five dollars thirty six cents of its brief so were only analyzing whether the air was harmless that air was not harmless because reasonable foreseeability is a limiting condition on the amount of on the amount of product that is attributable to in here that amount and so the jury was not able to make that finding in the st instance a finding of harmlessness would amount to this court saying making that finding but that is up to the jury the government says that the air is harmless because of the concurrent sentences setting united states against burns but united states versus davis from this court is the controlling law and davis is a knowledge is adverse collateral consequences that can stem from an improper conviction such as disfavor before the par i will begin with the fact that the district court and heard no factual findings to determine if there is a material hundreds this alone requires room and an action that takes place contemporaneously with arrest is not sufficient to required finding to apply the enhancement in any instance and in this case the district court did not a plot enter proper factual findings to determine if mr allison acted willful willfully but the standard here because it occurred contemporaneous with the rats is that the district court must of entered factual findings to determine if there was a material hinderance in this district court did not enter those findings in the minsky this exact same situation happened the district court entered findings that the defendant acted willfully when it should have determined if there was an obstruction to the odd investigation and this court remanded to the district court to do  your or your honor the government never argues that this error was harmless however the president set forth in that morley martinez's five the supreme court states that the air itself in the guidelines is sufficient to prove that there was not harmless even if the defendant was ultimately sentenced to a sentence to a range that was in the proper range so here the district court could have varied even well in the supreme court precedent is that the air itself is enough to show that the defendant could have been sentenced to a lower guideline the standard here is not whether the defendant would have received the exact same sentence but rather rather could the defendant have received a different  as a proper will miss finding is necessary to apply the enhancement in any case remained is required however even if this court does find that the district court and rd proper factual findings to determine that mr acted with the proper willfulness in time remained is still required for the district court to consider whether there was a material hinder as i stated before this court remanded to the use of the enhancement where the district court relied on the finding of willfulness again that is exactly what happened in this case this is to put into court and you to consider whether the action significantly obstructed the investigation for all these reasons the reversal of the sentencing enhanced ment is required on remained the district court should resign tints mr rose alice without the use of the enhancement thank you to defendant argument that the evidence was insufficient to establish the existence of a conspiracy because this was adverse alice claims nothing more than a simple buy sell transaction the united states position is that because this argument was raised for the st time in of the argument that there is insufficient evidence to establish a conspiracy that argument still fails on the merits this is not a case where the defendant charged a single myself transaction history of the transaction and is trying to tie it into a larger conspiracy here the object of the charge conspiracy was the importation from mexico to california to ohio the four point four kilograms of methamphetamine and because we're not seeking to leak individual street level transactions was that the amount of drugs at issue were equivalent to four thousand four hundred dollars individual user amounts it was also not packaged for individual user consumption there were ten discrete packages each about half a conspiracy the jury could also infer the existence of conspiracy and not a simple as applied cell transaction based on rose out of his involvement with the drug supplier and also involvement in financing importation of the drugs from mexico that includes having the five thousand dollars in cash on his person to give to duran which the testimony indicated was to compensate for her and also the use of the money orders that were found in the car that was driving that matched the name of the money order to used to find the importation of the drugs and paying duran's expenses paying duran's babysitter we would note that those money orders found in the trial and also used to fund this were from february and the last four days or four days before the actual transaction in contact with the drug courier he had the connections with the financing and he actually went and attempted the drugs and all strong evidence from which a rational jury could infer that he knew about the conspiracy and intended to join  arguments agrees with those alledged that the district court should have given the defendant specific instruction that the government requested here that would have required the jury to find the amount of drugs attributable that the court doesn't have to address this under burns burns we don't think is incompatible with say the status is looking at a conviction burns's specifically looking at a challenge to a sentence and burns a specifically looking  minimum the one day that the court applied here had any impact on the sentence that's a ten year mandatory minimum obviously the court applied a twenty year sentence here this court hasn't directly addressed the issue but in similar circumstances  set when you say that it it wouldn't have made a difference if the jets the court had given the correct instruction but don't we have to then just assume a crease what reasonable doubt to that that does put this court in the process of evaluating the the point of views that were established at trial here we actually know that the jury actually returned a verdict on the account count saying he was directly involved so he would submit that that is the proper there's a proper analysis of this court would take and it is established here under stuart with respect to the additional factors that would go to the st point of whether or not this court needs to address the issue at all because under burns you don't have to because there's there's no real collateral consequences identified there's you know the potential down the road i know it's out of seven certification they said well maybe one of the sentences could be reduced they could cap it that's fairly speculative but even if you get past that burns hurdle you're still left with the stored analysis and then you're also laugh even if you find that there was not sufficient have events that to reply brief that it was error not to make specific factual findings about whether or not there was a material endurance because that argument was raised for the st time in the library's not safe position with twain even if considered under the plain air standard there is no air here the federal rules of pro procedure only require district court to make factual findings about those aspects of the p s r that are disputed they the  defendant does not dispute an element of the p s r the district court can accept that factual findings without making additional findings on the record which it did here because those out never questioned whether or not the destruction of the impeded investigation of course that this report didn't make factual findings and wasn't required to make factual findings it was also not fair let alone playing there for the court to accept the s r s finding that the destruction of the phone recover those communications government was not able to recover those communications it's true we had the communications between results and duran courier but we didn't have the communications in those all of us and the drug supplier we know there were at least actual findings it didn't just say it was i find acted willfully that he was trying to destroy it also pointed out that it reached that conclusion based on the force with which those out through down the phone  said that this created an under by the inference that he was actually trying to destroy the file at finding that he was trying to do the story based on the force with which you threw it down to make this not clear air so backed up by the fact that when the spike the phone rebuttal st on the obstruction enhanced meant argument on argument was preserved at page twenty nine of our brief with are still pending saying that there was no material hindrance from the phone being lost and on the facts that the doubt it was not lost from the phone from him throwing his phone to its feet at in plain sight and that the cell phone data was recoverable it was just at the phone was rendered inoperative the battery in the case recovered the information on the phone could have been to arguing in the following paragraph d c firmly establishes that a mere transaction is not enough to establish a conspiratorial agreement ham and other cases from this court date saying here none of the ditch factors elevate this spot exchange into an enduring relationship with common stake i heard my friend from the government say that there is nothing to look at going forward only the backward looking information is agreement looking backwards when results wasn't even involved until the drugs were here and kristen and duran were frantic to find a recipient based on the bits on dietz an absence of any of those plus factors there's nothing to infer a conspiratorial relationship from the mere sale without any agreement beyond the sale itself