right in our last case for today is united states against jo by focusing on the lack of critical findings regarding mr jones's drug quantity calculation she was convicted of conspiracy and possession with the intent to distribute over fifty grams of methamphetamine yet based on various additional attributions he was ultimately sentenced with a drug quantity calculations at two hundred eighty eight point two nine grams of methamphetamine there is an insufficient factual basis for over one hundred grand  calculation which impacted mr jones's base the fence level and the analysis of the section thirty five fifty three factors such that a remained and re sentencing is necessary i'd like to address three components of the calculation that good reason to think that that cash corresponded to the exchange that had just taken place in the parking lot and some of those bills were even marked bills but they see the color of the bags that are being transferred from one car to another and he can't even make up his mind what his story is about what this cash is whether it's about used cars or whether it's about marijuana sales and the district judge thinks you know this is just all part of the  methamphetamine transactions so with regard to the cash it's a total of thirty nine hundred dollars that is found in his pocket and i think you are correct that with regards to fifteen hundred there is perfect clarity as to where it came from because it fifteen hundred dollars and mark details from a drive transaction between a coconspirator mismatch and an undercover officer so the fifteen hundred is clear but the other twenty four hundred which is the issue that we're raising is not as clear because yes while all the gesture court explained that the drugs transaction had just occurred in the mall parking lot and money was exchanged baggies were tossed officers  observed this transaction from across the mall parking lot at about a fifty yards distance the officers also testified that there was thunder there and it's a tossing of two plastic baggies so while we might trust their testimony that they appeared to be white we also have to take into account the distance this is being viewed it's a plastic bag in the sun that isn't i mean the judge is looking at this as a whole right kind and these are fact calls really and so the judge thinking of you know the context of what mr jones has been doing the fact that there's always other meth in the cars the fact that the bags are transferred and the lack of any plausible explanation for mr jones whether it's the marijuana explanation or the use current school nation that would suggest it's from any other source so we do not contest that this amount this twenty four hundred dollars likely included some amount of drug proceeds we do not contest that what we can tast is that the link was sufficient between his crimes of conviction and the transaction that produced the twenty four hundred dollars and if i could go through some of the facts that you mentioned first of all in its analysis the district court refers to the twenty four hundred dollars as drug proceeds and not as methamphetamine and i think that's problematic because we are actually converting this to grams of methamphetamine and to generalize it by calling it drug proceeds is not clearly enough and secondly you mentioned the meth amphetamine in the vehicle the district court does an odd cherry picking of facts with regard to the drugs in the vehicle all there were is a total of forty seven point one grams of meth amphetamine found in the vehicle however the district court doesn't clearly point out or mention that there was fifty three point eight grams of marijuana which leaves open some ambiguity a perp hondurans of what was in the car was marijuana and not meth amphetamine finally the district court points to the fact that mr jones  regularly selling meth amphetamine it can take into account the totality but past drug sales alone are not enough to show that the tread transaction that produced this twenty four hundred dollars it was a transaction with  ne but i mean this is sentencing and this was the one piece of evidence that might have supported such a finding and besides even if these sixty eight grams aren't there or the district court finds two hundred eighty eight grams of methamphetamine and so you've got the sixty two so by smith made it all goes to got one hundred eleven august thirtieth you've got the other i understand your point and i think that where it becomes tricky here is that this is not the only issue with regards to the calculation that's problematic and this records that sixty eight point zero four but there's also  second grouping that represents thirty one point one five when we put those two together we are moving into a different base offense level category so if i could talk for a moment you're out already one hundred thirty one point one five which  a representation it's a component of miss miss sales you had mentioned that miss miss taylor approximately sixty so this is a component of between july thirteenth give me between may and july thirteenth that correct and so you're correct that the question is is it within the scope of criminal activity is it reasonably forseeable to him and surely a rational judge is clear in view a rational judge could think that what  rowland is doing is reasonably foreseeable to him and smith to them well what i would like to point out about this time period in particular there is cell phone records from july thirteenth forward yet the relevant time period in this case is made ultimately august thirtieth which is the date of arrest between july thirteenth and august thirtieth there are cell phone records that show drug related communications there's evidence beyond mrs this testimony to period proceeding may to july it's firstly not clear when the conspiracy began with precision mr met never testifies to specific dates and furthermore to attribute all of mr mess sales to mr jones when she herself testified that in fact he was only sometimes present sometimes involved in these transactions and residence in involvement are two different things surely he doesn't have to specifically be present to be involved and yet and yet miss smith testified that she always received the drugs from mr rowlands so i'm not sure that it's clear for that earlier time period that mr jones has the requisite level of good afternoon ma'am please the court joel gabriel's for the united states of america no jones in rome were living together but that doesn't seem like very good evidence of a conspiracy to di at it i mean do you have better evidence for insisted smith never say the jones was involved in early transactions your honor the first part of answering that question is to look at count one of the superseding indictment which jones was convicted of by the jury jones made precisely that sort of argument they just posed in front of the jury during trial namely that the dealing might have been just a joint project involving smith and rowland and smith and j count one charges a conspiracy from may through august of two thousand and sixteen the jury found him guilty of that specific dates were testified to by the undercover officer in other words may through august miss smith did not testify to that as to the other way to answer your question judge has smith did not specifically say those words in other words i get my drugs from jones who's a member of my conspiracy of course he did not say that when the district court at sentencing summarized his recollection of smith's testimony it was an accurate summary and a fair summary district court referred on page twenty five and again pages forty and forty one to his recollection of what ms smith had testified to at trial the judge found her to be credible smith's testimony on these matters is most particularly found pages seventy six to seventy seven when she said she began to participate in dealing activities or drug dealing activities with them she described her role in this project has looking up buyers that she found with jones and roll and pages eighty to eighty two smith testified that jones would sometimes be present not always but sometimes jones would tell  roland to go ahead and complete a transaction smith would bring money back to them page eighty six after arranging a sale with the buyer smith would contact either jones or roland inform them that she needed her methamphetamine pick up the methamphetamine from roland and then physically conduct the transaction by herself and on page ninety four smith testified that she that jones and rowland both set prices and explain things interestingly enough we know the most about what happens on august thirty that's when everything crumbles that's when the best facts are available we catch everybody in what they're doing so we know what john's involvement is we know that he's involved up to his eyeballs on that day in contact with smith by phone before and during the transactions receiving the cash afterward telling roland yeah go ahead and physically turn over the drugs what she needs pages want to one two one zero six smith testifies and describes her interactions with the party the other parties on august third the way that she describes her interactions with jones and roland are remarkably similar to how she describes her interactions during the entire pattern of the conspiracy during all of her sales to scott scott of course is the undercover officer in other words smith smith is a low level drug dealer she describes it and says what i get the i get the stuff from roland physically i don't think that it's fair to interpret that to mean therefore jones is out and jones is not part of the source for me the district court got it exactly right after sitting through the trial making a finding that smith had just had to joined team jones and team roland and now it was one conspiracy there was no evidence at all at trial and certainly none presented at sentencing that there were multiple conspiracies that happened to involve different combinations of these characters with respect to the cash conversion issue twenty four hundred dollars being converted to approximately sixty eight grams of methamphetamine it seems very seat of the pants to me it seems and there is all this money but there's marijuana around there's methamphetamine around the conversion of those dollars if it had been in kilos of whatever elses grams of marijuana might have led to very different outcome and need strikes me it's a very thin reed to assume that it's that it's math that you're on several responses to that first as far as the total quantity again we're talking about a two hundred gram threshold jones well that may save you a bit but i mean we you was that jones and the others but johns in particular in this case johns was a drug dealer and johns was a methamphetamine dealer that was the only evidence at trial that was what was discussed and set forth in the pre sentence report that was which came from the back see you see that is the problem and i agree the record could have been cleaner on that your honor has a judge would already said i propose to set aside the one point six grams found in rowland's purse because of the minute quantity relative to everything else with respect to keeping track they did a great job of keeping track those items were in fact introduced into evidence and it's the labels on those items that make it very clear for trial purposes of course the essential element are you and the markings on the fronts the  significantly larger amounts found in the back seat i mean do that seems to be conceded by john's now on appeal with the bottom line to be excluded is sixty two grams it's still over two hundred grams yes this court would have to find that the district court clearly erred on both the convert cash conversion issue and on the prior sale with respect to the cash conversion again then the argument now that the phrase drug proceeds might be insufficient to be shorthand for meth proceeds is a little bit it's a little bit off your honour's the only thing that people are talking about at trial in the pre sentence report and at the sentencing hearing was meth sales nobody was talking about heroin or cocaine or marijuana sales in fact johnson self didn't say that not only did he offer no contrary evidence at sentencing number one he backed off of his implied objection when he had originally said that he sells cars to make money backed off of that and declined to present  indeed he conceded at sentencing that his commission of the present crimes was based on his inability to get a legitimate job and on his need to fund his own drug use sentencing transcript thirty four and thirty five and the court made note of that claim a few pages later on forty two specialist and further he actually benefited from the fact that marijuana was not included but he was not deemed to be a marijuana dealer the percentage report and the court adopting that stayed so finally i just like testy it's the district court's responsibility to sentence based on accurate and reliable information and i do not believe that accurate and reliable information supported the cash conversion to the sixty eight point  been setting those aside these determinations also weighed into the district court's evaluation of the section thirty five fifty three factors such as that i think even if we're still above that you hundred we can't say that it didn't impact the overall sentencing of mr jones who's entitled to reliable and solid evidence backing his sat so thank you all right thank you and thank you also for accepting the court's appointment we appreciate your your work for your client