this court is not accustomed to hearing cases like this one and that is for good reason here all of the allies which one we work with do you think you're getting ready to tell us what makes this distinct i have you this one refers to the fact that every lawyer feels that way but i believe in this case it is true because all of the activity in this case occurred within the state of north carolina now since when has that mattered since the the the truck in the do and the really the facilities of interstate commerce must be engaged in order to cell phones cell phones and auto color sound cards that's correct your honor but in this case it was the government not  cell phone she communicated with the informant that is true but it was the government didn't initiate that the younger found somebody to kill her i mean she i know i'm not  holding we can explain that the decision rested entirely on the fact that the only reason the soldiers and that's a lot of limited phrases jurisdictional link occurred here was that it was contrived by the government for that reason they had to send they had to communicate with her and how do you miss davis communicate with mister when is how you pronounce it i believe so how did she communicate with him j three thirty nine he explained they did not text back that she had come into their nail salon previously that he knew her from the ocean arrives and so on we don't know your honor that testimony is on the she used a lot of actually use the burn phone didn't she she used to track down but this court has never relied on the nature of the cell phone and we don't contest the cell phone is not interesting homeowners so what is your argument that the government contrived that is a all the car was only driven in response to the government's establishment of the meet up with patients which were parking lots and again i think tele to use a car they didn't but they said you know he talks but what difference does it make if someone calls you to meet them isn't it reasonably inferable how many ways you can get there if it's not within walking distance you or your argument seems to proceed on the assumption that cellphones and automobiles are the ordinary avenues of interchange so that because there has been some communication with that the government call or she called the government can never get it off the table from then on that telephones or cars be used i just i'm just unaware of any authority for that proposition because coats certainly  says that the government is not me it is certainly is not we have read i read to you sir baden the language that says just only me your soul and every other exclusionary adjective i can think of to evidence that the use of the cell phone here or soley for the purpose of jurisdiction because the government sat center control text message in a situation where that was not that doesn't mean that doesn't mean it was solely for that purpose just just as already pointed out which i think we don't need to take judicial notice of but everybody texts and talks on cell phone but these two individuals did not and it was not until i know they didn't do their make up until she got word to him that she wanted to kill somebody that interaction it was disputed at trial who initiated that conversation but it is undisputed that it took place in person and it was not until the government got involved that a controlled test will place where's the evidence that the use of the initial use of the text by the government informant or agent was done slowly as you say the hallways soley for the purpose of manufacturing jurisdiction i would point to j and three thirty nine where convenience is it a convenient way to establish contact it is a convenient way to is to use it on the most arguably the most convenient way to establish contact even if it is your honor that does not exclude you have to answer my question did it is i posted it may well be the easiest no i say well ok so let's assume it may well be in manipulation is a piece you have it there's no support for the notion that manipulation justification but it is an extremely convenient veal means and there's simply no logic or law to support the notion that the government has to choose another mechanism to avoid an soley soley for the purpose of jurisdiction joe has gone through a litany of why it's not soley by the way there's no evidence in this case the evidence that we have the cases that we have the government i read that case there were no other bases for jurisdiction other than that move by the government well there was an attempt by the government to suggest that the the defendant's willingness to engage in that activity was enough and the court said any think once jurisdiction has been manufactured the conviction may not be sustained on any subjective intention of the defendants we don't really have yet to establish that it was in pretty simply many factors to start with i don't believe so your honor well in the light of the fact that that it was only the officers that set the location and car places parking lots and gas stations but that's going to happen just about a restaurant movie theater shopping center where do you not go back car i'm not saying that those are places that may or may not require a car i don't know what you are saying where could they have chosen if you if you kept it in the us and we haven't got into cars here we're still talking about cellphones you still haven't talked about cars because they established the meet up with a patient in a parking lot possible difference could it make analytically in the sense that it is a unique crime that has these elements that gets into federal court you'll probably act was designed to reach mafia dons and racketeering cases and this is when there's still no argument almost sounds like you're the jurisdictional argument you made in your brain which you haven't mentioned today the manufacturer jurisdiction the  that there still is no instrumentality of interstate commerce in the words there was a further cell phone use there was an automobile use you argue that that all gives white male that's what i thought you were making a fruit of the poisonous text but you apparently are saying forget that anything else independently they all get washed out too is that what you're saying because that initial is that what you're saying is dikshit yes your honor that so the other words the fact that she used a call every time she used to call each one of those independently gets wiped out as a basis for jewish state because the government established that platform if ms day i don't know what that means or do you mean the governor's thought it already you have four because the government was manipulating jurisdiction and on but how did they manipulate it they said made us yes at a parking lot meet us at a gas me to sit church that's not necessarily a car place and well they're not but how do you draw that line for the next what's the line you would have a strong in this case they can't suggest a place where it's where it's logically inferable that people might come to in cars and where is that that that when the government  we want to meet with you will be glad to hear your turban but don't you drive a car or you walk down here to meet us our argument is not the government has no wait wait wait wait wait but that in your argument that would not be manufacture question i asked you to draw a line from me here of what you think would be permissible place to choose to meet where you wouldn't reasonably think that someone would drive a car to a home at the else on at other places where name to so the nail salon why would you not think that somebody would drive a car to and they also they may drive why would you think that somebody would drive a car home they might you government's rule this is your home this is the rule you want us to establish our role is and i'm asking for a rule big guy so that people the government will know in the next case what's the list of places i the rule is that when the government manipulates the choice of what to someone who you're not answering my question and i think it's because she you're already seeing that it's unworkable i don't believe so your honor but you won't but you didn't then give it to me what any location that does not what the rule your honor the rule is when the government sets a location that is that begs an individual to use the facilities of interstate commerce they've manufactured a tax individual for twelve years and now been reviewing sentences what are you talking about there's a suggested guideline range that begins at two ten two hundred ten months for your client correct that's the advisory guideline subs and when there is a statutory maximum that becomes the guideline correct that's five to one point one that's what happened here and that guideline the statutory maximum save your client on the what would have been the guideline range it did not because the guideline range is calculated at one hundred twenty months and then the court is tasked with using that thirty five no stock to stop if you didn't have a statutory maximum in this case what would your client's guideline range be two hundred ten to two hundred six that's my point it's my point so the existence of the statutory maximum under the guidelines saved him the lowest number nine months no your honor five g one point one sets the new advisory guideline range and the court is tasked with using the thirty five fifty three factors from that new advisory guideline that all guideline range always to go well would you suggest acceptance of responsibility she went to trial so we understand she lost acceptance of response and there were some pretty damning comment by this judge that's true that might suggest that you wouldn't feel particularly comfortable throwing her at the mercy corps the judge did i think he used the word cold blooded term cold blooded he did but he did not articulate that he would have imposed the same sentence if you committed oh i think that's a pretty clear thank you very much to your honor he did not we believe give adequate attention to how do you think your client is in any different position than anybody else who was sentenced under an advisory guideline how is your client any different they have a bottom number in your case it would have been to ten but because of the festering maximum which trumps and becomes a guideline is now set at one twenty correct that's correct but a judge can go below one twenty a pricey cat and it just go below tootin correct so how is your how is your client any different than anybody who's been sent because the judge is tasked with explaining under the thirty five fifty three factors the extent of the downward variance and here we believe the judge was operating from that to ten number and not from the one twenty number believing that he had to justify a variance with a magnetic pull on the sentence upward that the supreme court in pew has talked about how the guidelines the advisory guideline range can have a magnetic effect on a sentence you think the judge here was have flown a spot magnetic guideline departed or if he gave a variance he's just saying you're lucky you should have been a tootin but you really at one twenty just what i say it is a benefit to your client they have the statutory max and that helps her because that one twenty evidence supporting the jurisdictional element has to be contrived by the government something counterintuitive like going across state lines was the biggest reason she fails and her argument biggest reason your honor not gonna davis drove her own car to meet with these undercover officers three times and away from free time she used her own cell phone free cell phones she bought her own track phone specifically for the purpose of this murder for hire plot did you understand our argument seemed to be that everything that followed even if she independently used her phone and drove that was tainted now she didn't accept that she said each one is tainted independently you understand that only can i believe i understand the argument i believe that if you made it it wouldn't be correct codes imposed a real specific limitation the jurisdictional element the contrivance by the united states has to be the only evidence that supports the jurisdictional element or that tends to apply that wasn't the case here believe all three hundred three three elements one is it has to be contrived and second contrivance has to be created for the sole purpose of manufacturing jurisdiction in the third is the contrived evidence has to be the only evidence to establish that your  is arguing that the sense that there's something wrong with the guidelines but to the extent she's arguing that the sentence should be lower she did preserve that by asking for time served sentence but i think that here then that is incorrect it was an entirely reasonable sentence because is that just a court properly f it was a cold hearted attempt to murder her ex husband she lied under oath is it plain error review or is it not plain your honor is the question of whether the i don't want to question is it just plain they're already knew or not argument that i don't know if it was made before so that the district court relied on an improper fact or it goes guideline said that congress did not implement or that the sense in commission did not implement congress's intent those were not raised below certainly around in the sentence i'll start there miss miss davis told her engaged this cold hearted effort to have her ex husband killed the district court reviewed her testimony and saw the video and necessarily the use of the facilities charged in this case but perhaps it would but if our first plan fell apart because she gave too much and he fell asleep avoided stock the car then that's correct your honor and that may not have been a first plan she told the police officers been trying to do this for two years i did have wood is there anything in the record and just tell me that there isn't i look forward about the migration of this case from the western district to the eastern district don't tell me it's not in the record it starts out in  you very much mr laws you want to chance and take another minute or so just a very brief one your honor i just want to note that i've never seen a case where the manufacturer jurisdiction theory has been raised as an affirmative it is in fact about the sufficiency of the government's proof and here the government never established any non pretense means for reaching out to ms davis in the way that it did so we believe that the failure of the government's pretty is something that makes their