in this case the sentencing guideline range adopted by the sentencing court was determined exclusively by its application of the relevant conduct provision of the sentencing guidelines unfortunately what the court court failed to do what the probation department failed to do and what the government failed to address was the first prong of that analysis that being a determination by the court of the scope of the jointly undertaken criminal activity and the failure of the court to address that issue in any way whatsoever clause its application thereafter to be an air problem in this case is the reason in my opinion that the probation department and the government and the court failed to engage in that analysis was because there was no jointly undertaken criminal activity which could have been the basis of that analysis miss you and her husband engaged in the retail sale legal retail sale of chemical equipment to unknown third persons people that they had never met before  lot i mean she was found guilty of conspiracy she pled guilty to conspiracy there were three objects in count one of the conspiracy and what i challenge in the validity of the plea i'm not i can't argue that before th i mean we take as a given it was an agreement she pled guilty as is what she did there was no agreement as to the scope of the conspiracy there was no agreement as to the scope of the criminal enterprise at issue what happened was after she entered this guilty plea midway through a court trial the probation department came back and basically said all of the methamphetamine produced in all of the labs where this lab equipment was found some two thousand pounds of methamphetamine throughout california over period of two years was attributable to miss you it's as if she she ended up with a guideline sentence which would have  factory the same had a single individual been responsible for organizing and controlling all of those labs throughout california for two years overman says that they that everybody agreed at the time of the plea or meters at the time of probation department did and what the court did in this case was to group all of those counts and you'll find that in the probation report grouped all of the drug counts together and the calculation was based entirely upon relevant conduct they never said a part count two and said well count two is over here by itself and here is a separate analysis guideline analysis for count two group count one and two are grouped together and if the calculation is driven entirely by relevant conduct analysis there is never any discussion of anything else in the probation department and the court never discusses anything else so if we  knowledge of use for what man what what they use were guilty of i submit to the court is that the second and third objects charged in count one of the conspiracy that is possession and that there is more than enough evidence for the use to for that analysis to court sentence for the use given their their pleas in this case i understand your position you really think you plead guilty but the sc what you know really the foreseeability is not there there's no there's no school scope of a jointly agreed upon activity because she did not jointly agree with anyone to do anything with respect to what was going to happen he hundred eighty eight months twelve to twenty two which is not an attack so what difference does it make if say we should set aside not set aside the conviction be reduced yes so the money laundering counts and given the amount of money that that is nowhere to be found in the record i would submit to the court that there would be a much shorter guideline range for sentencing if all we did was hundred eighteen months is given for twelve and twenty two there's a possibility of her we went back she might get something that i would submit to the court that if there was a different analysis analysis of a guideline range based upon the money laundering counts or an analysis based appoint the possession and distribution of lab equipment knowing that there's a possibility it would be used by others to manufacture narcotics either of those analysis would result in a much lower guideline range from issue and this court has never found that the retail sales of lab equipment could could trigger this kind of an analysis under relevant conduct  admitted in count two that she knowingly and intentionally aided and abetted and procure the manufacturer the manufacture of twenty point to fill grams of methamphetamine to two points analysis four of the guideline range for that count was still relevant conduct analysis based upon her supposed that agreement to engage in this activity and more importantly in the proffer and in the change of colloquy with the court on counts one and counts two there is specific factual questioning of mr you there is a factual basis for mr you for those two counts the government and the court never asked mrs you for any factual basis on counts one and two but you're not attacking the validity of the plea i'm not i'm here at we take that as a given i'm merely stating that they analysis of the guideline ranges of all the drug counts are all relevant conduct analysis and this is simply a wrong analysis because the court didn't do what this court said in palafox manzano it has to do which is to first determine the scope of the jointly agreed upon criminal activity there was no discussion there isn't a word in the pre sentence report there isn't a word from the government there isn't a word from the court about that analysis one question just raised discussion focused on the court's concern about foreseeability in the court basically said look we've got all of these vessels we've got all of these feeding mammals you know why is it not foreseeable that more than fifteen pounds of methamphetamine would have been  scope prong palafox manzano and the center the one b one point three specifically say that the court first has to conduct the scope analysis and the activity has to be foreseeable all that happened in this case was an analysis on foreseeability there was never any scope analysis done and it has to be done and in this case the reason it can't be done is because mrs you could not that there was no discussion regarding the jointly undertaken criminal activity in his own brief that can be done based on the implicit agreement fairly inferred from the conduct of the defendant from the sales of significant quantities of a lot of laboratory equipment to persons they knew were using the equipment to manufacture methamphetamine the court then goes on to list the reasons that the court found that in that jointly undertaken criminal activity the amount of methamphetamine produced was reasonably forseeable well how did she know for example we're talking about a conspiracy which means an agreement she well your honor in this conspiracy as in most conspiracies the mental state and the agreement shown by the two parties is usually shown through their actions in this case mrs hughes actions were very significant number if she was told by law enforcement that it could and was used for manufacturing math and in fact hope product was found in meth labs number two she'd like to law enforcement when she said no no this goes only to export number three she created false invoices so that at the search warrant on the day of a rest when the agents executed a search warrant they found invoices indicating that his lab equipment went to the east to the far east china and other locations when in fact when they found the real m voices in those countries that was not the equipment that went number four there were serial numbers on each  by my number one she did plead guilty to yet he knowingly aiding and abetting the manufacture of methamphetamine so in another case if the defendant didn't then it's district court judge in this case because it was a court trial would going through it with this lady well that is in fact what defendant claims in her reply brief but actually g e r seventy five and what governments excerpt of record seventy five the court goes saying true defendant yes is there anything that mr rhodes says that you have heard about what you did or what your husband did that you and you observed or what you knew untrue defendant know the court misreads with respect to mrs you are there additional facts that you want to put on the record and then i seventy six the i indicate there are a few different facts i would direct the court's attention to page six there was no plea agreement in this case but there was a notice of factual basis additional days away while the parties went over the factual basis i think that is only in the record based on the dates indicated by the parties went over the analysis and as to count two which your honour's brought up earlier the and the factual basis for that was that certain lab equipment left micro labs and went directly to a methamphetamine laboratory and during the change of plea  in count two the amount of methamphetamine that could be made was twenty kilograms or more twenty the cutoff level for a level thirty eight which the court ultimately found this defendant to be guilty of is several alternative calculations that could be used but the court said there was no calculation under which one could determine that mrs you was left was not guilty of at least aiding and abetting the in the sentencing hearing the government admitted that this case the selling of huge and and enormous quantities of laboratory equipment does not seem to have been well i think in this case though certainly this court the ninth circuit has recognized that aiding and abetting in the belden case the manufacture of methamphetamine  marijuana could be done by providing and maintaining equipment moreover as the government showed in its sentencing position papers and this the court actually referred to this the fact is  that the legislature has been concerned with frank and deterrence and that is why the pseudoephedrine guidelines and other list of chemical guidelines have actually increased there was a time when the argument that th e defendant is making here was basically made in terms of pseudoephedrine and that is it's not the real stuff so it doesn't matter in this case given that the arguments for each of the arguments advanced by is no the manufactures go free well the manufacturers don't sell exclusively for cash in fact at all for cash as michael lab said the manufacturers have put serial numbers on it and the manufacturers do have building case is a case in which the defendant installed a generator that was used in the marijuana grow so he was directly involved in the in the marijuana conspiracy and he was going to share in the profits of the whatever was so d if the court look specifically at the change of plea colloquy as a court pointed out there is nothing in the in the statement of the factual basis that implicates mr you when she's there after the court ask your  agree with what the government said about your involvement and she says yes there's nothing that was said about her involvement in counts one and two she did commit if you don't claim there was not a factual basis for the plea the government is arguing that the can you don't you don't deny that there is a factual basis for the plea the court did not take a factual basis i can attack the legitimacy of the plea in the context of this appeal but the court erred in its calculation of the range the two other objects in count one should have been the basis of that calculation which was the possession and distribution of chemical a quip meant having reasonable belief to know that it was going to be used in the manufacture of narcotics