consider that fact in failing to adjust the basic principle for my no role even let me ask you a practical question in this case a high understand correctly from the briefing your client is due to be released even assuming that we were to agree with you and send it back to the district corps by the time the district court rules the issues with seem to be moved what do you suggest as a practical matter w assuming for the sake of this question that we would agree with you know well if you agree with me in time i could request that he'd be let out in on bond before the district court actually had a rehearing and the district court imagined would it would then have to shorten the amount of time or rather it would affect me and time for the supervised release or the end of the supervised release term so it would have an effect on his  that your client knew that the iodine was going to be used to make methamphetamine not find that he did not find that in fact he found the opposite that the government had been able to prove i thought he found it by a preponderance of the evidence rather than by cl being not supported have you of evidence for march the district court could find by a preponderance of the evidence that he knew that this was going to be used to produce a mouth that was i don't think that that it was proved by preponderance there was some evidence that wa time he was obviously trying to help the agents because obviously didn't want to get in trouble at the time that he was being fingerprinted he was being trying to be carpet of trying to help the agents so within the context of trying to say something to them that would help him get out of truthful well what it found was that it didn't have enough of a liability for the district court to find that it was proven by thing convincing that given the context of what was said that it  to make meth it was dangerous process to happen that he was well aware that he was bringing in something illegal that was going to harm people he actually made a contrary finding to  who went to mexico called someone somebody else floated down in his car and then he was to call somebody else and and clearly the district court having been in a position where he sees these types of arguments are sort of at cross purposes when you're looking at minor role adjustment you want to look at this as a part of a giant methamphetamine operation so that we consider him a small player when you look if he wants to look at the adjustment upward you don't want to think about it as a giant methamphetamine operation because he was really only bringing in i have done and it should be looked at as just a little i have done so it seems to me that those arguments are good morning they please the court my name is elizabeth olten i represent the united states it might be helpful to put this in terms of relevant conduct because in the fact what the district court judge did and looking at the defendants role with respect this broader methamphetamine production scheme and to consider whether that broader methamphetamine production scheme should be considered relevant conduct as to this defendant because under one b one point three relevant conduct is deciding whether the cross reference in two to three point one scene should apply and also in considering whether a role just can apply now in after district court the government lost on that question i mean we argued that the defendant knew he was bringing and i dined that he knew iodine was used to make methamphetamine that he bent to the house where they broke the tires down and took out the methamphetamine and that lead to stablish that like there in convincing evidence and there not huge appeal on the record he did actually he did which is a little bit and he said that he said yes if the government appeals and i get reversed and i come back it's going to be a year from now in my memory is going to be hazy and so let me just get this down now so that everybody will know what the result would be if in fact the whole methamphetamine production scheme was relevant conduct but that's not what it is and it hasn't been proven and i'm only looking at that bringing merchandise into the country contrary to law which is a base level for he's the one who did it  smuggling it's the conduct creates a substantial risk of harm the government suggested several others mishandling of environmental pollutants which starts at a level six but there's an eleven level increase if it is the conduct creates a substantial risk of i dine which is going to be used to make methamphetamine i mean it's a harmful it's a harmful things so he did that but then he also said that the defendant asserted that what he thought he was bringing in was steroids or illegal precursor chemical that is used to manufacture methamphetamine and to the it's as if you that he simply you know relied on on his own common sense that methamphetamine is a dangerous substance i don't i don't know how much more would have murder is one of the is one of the guidelines that the defense pointed to where the base defense level is twenty eight and if there's actual harm you go up another two or another four depending on how serious the harmony but in that case starts at twenty seven goes up to kidnapping starts at thirty two goes up to if there is actual harm but in all of those cases that they sometimes level is so high and i think in part because in those offenses there's already such an inherent smuggling but where the way that it's done creates a substantial risk you know then you go up six and i think that this case is another case where we're bringing merchandise into the country contrary to law criminal sexual abuse is twenty seven can now think it's thirty two aircraft piracy starts at thirty eight and then if there's actual harm you know it takes up a little bit beyond that and i have a procedural question under the protect after the protect act once once this court has decided that it was appropriate for the district court to depart the extent of the departure is still reviewed for abuse of discretion that's my understanding of the of the  appendix that they submitted a copy of the sentencing memorandum you'll see that the defendant actually suggested an up or departure as a way as they were arguing that it shouldn't be the drug guideline with a level twenty eight it should just be the regulatory offense and then there are several three of two thousand and four yes would you decide there should be a rematch there's not much time to do anything about that that's true that's true and i don't really know procedurally how that gets handled i know that that is the very thing on this was was done some time ago and departure the judge was to rely on the same thing that he refused to consider in the role of just men and i think that that's just not the case i think that in inciting what the relevant conduct was which is what decides what determines whether a role is just meant was appropriate the judge was really looking at the defendant's knowledge of the broader methamphetamine production scheme and he decided that that the defendant didn't have the knowledge and the scheme in deciding on the upward departure what the application note says is that where what is being brought in is harmful and upward adjustment and upper departures appropriate and so that so there is a question of what if any knowledge does the person have to have about whether what they're bringing in is dangerous and what i was thinking this morning is if it's someone brings something across the border and has no idea what it is i mean they're given a package and they bring it across and they have no idea what it is and it turns out that what they're bringing i dangerous would that upward what an upward departure be warranted and and i would argue yes in this case we don't have to get there because in this case the defendant admitted that he believed that what he was bringing across was illegal medicines or steroids so it's all in this case you can say that the defendant may have been mistaken in fact about which dangerous thing he was bringing over but there wasn't any question as to his knowledge that he was bringing over something