in the car with some of these the car to get the keys and that's one example the government emphasize a circumstance where given what transpired about who left the car the only way to the agents may have mentioned to her nand is where the keys are is of no significance what is more important is that the person that went and got the keys boarder go for as you say the agents are in contact with your client right yet other people then seem to be doing things that the agents have not been in contact with so how do they know to do them the theory is  understand the government's case they know to do them because your client is telling them to do those that you know in fact what the government then some problem is the government's brief and argument they distort the record you the record with the record reflects and this is clear again we have to go to the record and here the text messages are crucial between looney tunes was the undercover and are now and it is these are highly reliable because these were tax my cities that were and this was unaware that looney tunes was an undercover agent so they were understand how the sentencing hearing itself played out my understanding is that the sentencing hearing consisted largely of your client testifying and tried to minimize his role the government did not put on there's a strong suggestion more than that and the way in which the court and analyzes the course simply did not believe did not believe your client in his attempt to minimize his role instead we have text messages so i take it that point that he was clearly being told by the agents to do things yes and in receiving those instructions he's not an organizer simply by receiving and acting out of course ok so what the government's theory of the case as reflected in the district court's finding and i think this is what we're asking you to address is even though you're right as a legal matter on that point if the record could be read to show that in addition to receiving orders and acting on them he was given discretionary authority as to how to implement the scheme saying that he spoke with other people other than the agent and found out what price they would get they are the ones turner informing him what he can do to people that paid the four thousand dollars  has the government suggest response so that is i guess that's enough that's all you've got correct you're right and that's the problem with the government's brief can you do the duck a down this is helpful hearing your argument on the factual point with respect to the claim that he was giving instructions when the instructors codefendant to retrieve the car keys from the van right could you just walk through that what's your response to the government's account of that because the government sick out there is that he was exercising discretion to direct some of the other members of how to implement the scheme by go get he's in the van and drive  in a scope determination and a status to terminations but in this court's decision in criminal hernandez explained that it doesn't have to address the scope determination when it's not contested here the  numerosity factor was not contested below it's not contested on appeal so whichever member of the panel writes this opinion i think can address go the same way it did in in nando's so turning to the status part of the analysis i want to st address an issue that came up in the briefing because for the st time in his reply brief hernandez offers the court a new rule from the th circuit and this is the rule from the of the literate case and that will pretty much says that the government has to demonstrate the organizing or leading of each and every member of the conspiracy i'm not going to waste too much time on this but briefly this court should not follow which verd because it's out of circuit out of date raised for the st time in the reply brief and most importantly in direct conflict with this court's rule which hernandez and the government were in agreement about in the opening brief and the government's response brief so the rule is far as status is  i'm not arguing that that's all that's required and i think it would be a tougher case if that if that was what happened but in this case and if i can finish my statement i do think the government showed organisation of the entire conspiracy the activity and all of its participants i think the record does show that how could you show of all of the participants without showing some instance in which he exercised direction over each participant because your honor we have the we have an objective to facts from the p s r and those facts mere they're just about word for word the up the factual narrative of the r and the corresponding paragraph in the plea agreement is that this was a conspiracy quote for hernandez and there are a few other key key facts in the p s r that that demonstrate this sort of organizational control hernandez that contacted the cooperating defendant and recruited him now that's not what it direct evidence all address that in a minute but that is part of the it goes to the heart of hernandez's control over this conspiracy the so all of the members of the conspiracy agree that it was hernandez's conspiracy and that hernandez made a series of agreements on behalf of his group it wasn't just the fuel it started with the original price of drugs two hundred thousand dollars for two hundred kilograms he had that and that decision making  behalf of his group he then did agree to the four thousand dollars gas price i'm can use that the counter argument is that the person who was organizing it was looney tunes that person setting all of the direction up and that hernandez or that is has just following the directions of that organize so so what what's wrong with that contention well two points you a factual and a legal point the st is that even if hernandez can convince this court that there is a an equally plausible view of the record this court setting career oh and several other cases that when the district court selects among multiple plausible views it's not clear error for the district court to adopt one of those possible views so that's why i'm discussing these facts in the context of why the sentencing judge's view was plausible and in this case yes just takes input from from the cooperation defendant or from the undercover agents but he also gives input for example suggesting places off shore he says you know don't don't go to manatee maybe top them maybe off shore different cities in puerto rico so there is an exchange but he's also providing input and as much as back to directing other members planning activities which is a factor yes sorry continue so you do you have any what is your account of how the district court was correct to suggest that there is official evidence to support the finding that he organized other participants as opposed to other activities what are the instances in the way that we can see him organizing some other participant because i think if you don't have any of that that's obviously a challenge of course so if you have one instance of it then maybe we look at contextually with all the other things you're talking about we need at least one instance i get going so what's one and is there more than one and what's the account you would give in response to what you've heard as to why there is no such basis ok i'll give it at least three definite instances st an individual this is in the p s r and the plea agreements an individual from the dominican republic  contacts to cooperate and defend when he contacts the cooperating defendant he says and this is the mike the st paragraph of the factual narrative this is a conspiracy for hernandez that is the individual in the dominican republic recognizing the organised organizational authority of of honey and as that's that's one the nd is that he made three agreements on behalf of his group that is binding that is showing that organizing by negotiating on behalf of his group or what three agreements the three agreements or the original price of drugs and it wasn't that sorry did it and if i interrupted but it wasn't that the that he was acting on behalf of looney tunes because he contacts loony tunes and tries to set up the price for drugs he is initiating that this deal here based on the text messages no i'm not basing that on the tax what's the evidence that supports your account of his relationship to loony tunes with respect to the setting of the price the un objected to portions of the p s r and the plea agreement working with the younger covers so he makes three agreements regarding the original price the fuel price and who set the price where did that come from who set the price  that price that information is not in the record but there it was fact that her negatives may be aware of it and that's entirely consistent with the defense theory that is just an intermediary the fact that he has information doesn't it doesn't by itself suggests that he is an organizer within the meaning of that phrase just one of your theory any low level person who stays in the and not that it's clear from the record i don't think it's clear from the record who who exactly was or anyone even if you objected to that number it would have changed they have the power to set different price than the two hundred thousand that information is not in the record and under that is put that aside you have anything else besides the thudding of the two hundred thousand dollars one cent of the other two agreement the other two agreements are the price of fuel and really briefly as much as  hernandez objects to the characterization that it was his agreement he didn't object to the portion of the p s r that says it was his agreement the exact wording is hernandez agreed to the four thousand dollars price so it was for the district court viewing that an objected portion of the p s r text messages he said the whole purpose of his testimony at the sentencing hearing was to refute what's in the p s are you saying that it was too late for him to do that is that your position that when he took the stand at the sentencing hearing and described his rule as he sees it he's nothing more might my position is a little different but yes essentially he needed i don't think he was specifically trying to object to the p s r i think he was trying to minimize his role but the p s r does implicate him the district court is to work the basis for this organizer finding is the release as a court runs persuasive the government wouldn't description analysis at docket number two a week where we find docket number two there some other yes because this is because after the government submitted its memoranda he testified so the government was also able to argue that he wasn't credible and that his statements were inconsistent  for the instructions in the car at the cash for drugs exchange i want to highlight some key points about that because one this undermines the sworn statement which is problematic for that sworn statement but it undermines the sworn statement that jersey no provided that he was acting on somebody else's orders instead of on the end of his orders that was a last minute instruction only to hernandez that only hernandez was aware of again this is from the other vehicle he had to instruct him to give up his own vehicle at the time it was unclear when or if he would ever get his mazda back recognizing that authority and plus the remaining factual was really the organizer and then presents evidence suggesting in another transaction he did he subsequently did plead guilty to money laundering and importing a huge amount of cocaine is is that is that correct if you so testify and correct slightly it that partly comes from his lawyers account the record his lawyer is the one who suggested even if that's the case and the more low was the real boss or anything like that that's not enough for hernandez to win on this appeal this court explained that for purposes of the organizer characterization you can be deemed an organizer and be out ranked in the criminal hierarchy the important factors for an organization for an organizer determination are the factors an application for that i've discussed such as negotiating yes your honor and the agreed amount was two hundred yes your own so how in this circumstance would it make sense to say that he's responsible for the two hundred is this it is important that we think that he had some ability to set the amount or if i were to conclude on this record i have no basis for thinking he had any ability to set the amount then what would be the basis for thinking that i should go with the two hundred number rather than the sixty number given that one possible reading of this is they would tell him an amount he had no capacity to change that in now whatever that amount turned out to be he would do so why should he be held to two hundred if they only had sixty i think my answer to your question can be relatively short also really the district court held him responsible for sixty  the district court in a sort of roundabout way he determined that the original agreement was for two hundred dollars and we started his analysis by byte holding him liable for two hundred dollars but ultimately decided to hold him to sentence him according to the lower amount so it's and i don't know give a shit and there's no use it is no basis on the record for thinking that if he had started at sixty he would have gone lower than that there is no basis in the record for that thank you honors puerto rico ok to venture so so i believe that the government and its extrapolated the argument and and really gave an interpretation is it is not a which suggests that statement lends itself to an interpretation that you're caught and is involved in the drug trade with his own real people is that we have to deal with this conspiracy not potential drug activity that's not object of the indictment and in fact in this case your honor in and this was taken for a ride this is important ask if there is a suggestion from these tax that your client is a player in the drug trade doesn't make it much more difficult to argue that in this transaction he's nothing more than a low level intermediary that he's a player means that he participates in drug ventures and what we have is this particular case where this record  transportation so the whole situation of under two hundred kilos is further evidence that he was not on control of what was going on thank you thank you