arrested and of member twenty second two thousand and eleven on a little town outside searcy arkansas he was pulled over by a trooper but i am officer denny and that stop result was the result of a three or four minute investigation that took place prior to that time what happened was is are they the troopers of the investigation including officer trooper  from this point forward they are doing conducting an investigation the investigation was very fact intensive it took a very long time it in be clued surveillance phone taps and  t i guess i guess contact with confidential informants so it took place over a long period of time mr white was at a business that was operated by someone who was known to the government at that time who was working apparently was involved in the drug transactions with mr omer rojas they went to that establishment after mr rojas left his house early in the morning and went to the business the business was a i guess a car dealership obvious shop when a body shop car dealership was a combination of a number of things but it was a business was it open at the time that everyone it's unclear i know that the the what what is not clear in the record and in hindsight you know you always think of these things but what happened was they follow mr rojas from about eight thirty in the am to mr struthers business and then the stop occurred at nine thirty so they talked about how and how they were out there for some period of time was never detailed in the in the record as a part how far they were but i'm assuming that at the time that they got to the business around that time it was open it was nine o'clock roughly by the time that m maneuvers i apologize for that your honor i can tell that for i'm familiar with the area so it's easy for me to tell it would be able to say to the court that it's not too long is not too far away and i would imagine that the stopping and going to rattler of approximately five minutes and that's just because often they are with the area and are standing you don't have to take that as part of the record but it didn't take very alive i'm assuming that a lot of time was spent at the business doing surveillance on mr rojas and then during this period of time was when they started running the vehicle license plate numbers it was during that b as a vehicle license plate number check that trooper danny yes i'm sorry that trooper denny i'm recognized as one of the individuals or the vehicle one of the individuals because he had had contact with  gentleman mr white my client approximately seven years prior during our arrest that took place for drug related activity so based upon that anything major did he in fact have a conviction he did he did from back in two thousand and four paterson who was the one of the individuals who indicated that he was there said that he was going to go ahead and stop that vehicle and he indicated to mr praed or sir to trooper denny to do so so mr white and i think what's important to point out is at the time that they surveilled mr rojas leaving his residence they saw him leaving his house he had nothing in his hand he put nothing in the vehicle and i know that the government's position is that that vehicle contained a place to secrete drugs and they were aware of that through some kind information they receive from confidential sources so it was that vehicle that left with mr rojas went to the business of mr struthers now what's clear is that mr rojas went to the car and exit the vehicle with nothing in his hands in fact some of the wire taps that were discussed during the hearing was  mr struthers had set on those wiretaps to mr rojas don't bring anything over here and that was on a process we about a week and a half prior to this stop for a week i think it was i think it was november fifteenth if i recall correctly so nothing goes in nothing comes out mr there is no indication that mr white had any contact with mr rojas or mr struthers while he was in the business they had to come at some point after that and then mr white leaves the business nothing in his hands gets in the vehicle and then he leaves and that's when giving paterson decided that he was on the floor you could hear about what about the what the government says the officer thought was invasive maneuvers of keep turning off the road and each time he would see the police no i here is what's important about that obviously we don't have any videotape with regard to what happened the first time that he allegedly pulled off but what the trooper did acknowledge is that he did go into a he did go into a convenience store was in there for a brief period of time and then he left that convenience store and then the officer was set up awaiting for him to start coming down the same road that he was traveling down which i thought was interesting if mr white was clearly trying to evade i think that the last thing that he would do is head out in the same direction that he had then the white was actually going to a friend's house on that and i think that's clear in the record that there was he was going down that road to meet with that to do business with a friend and and the reason why i say that to judge kelly with regard to you know he's the trooper indicates that he evaded when he went to the convenience store well then he also stated that he got right behind him and as soon as he got behind he uses blinker to turn into lane less not that's not how it appeared on the on the video and the video  officer denny is in the right hand lane and after following him enough i guess kind of off his right rear there's two lanes there and then you see mr white pull into the middle section to make that turn and that's when you see officer denny kind of border that lane going to two lanes and then follow him so hit the what he's reported and what he had to testify to or what was in the tape was far different than and that there is no reasonable  suspicion i've never never really seen a clear case i mean essentially he got pulled over because of his past from two thousand and seven and because he was out of business during day at daylight hours leaving that business nothing in his hands and that's the reason why he can't stop so i'm going to say the my place the court west and churchill once said that if hitler invaded hell then he churchill would make at least a favorable reference to the devil in the house calm so i'm going to do something a little crazy and ask you to assume for the moment that my client jorge rojas oliveira is a devil the record does reflect that he was connected to the distribution of approximately one hundred twenty five to one hundred fifty five pounds of methamphetamine he made threats to kill people and cut off their heads there was testimony that he attempted to solicit the murder of a cooperating source he had an unloaded handgun at his home with a loaded magazine nearby at the time of his arrest as for his  melky who was a cooperating witness for the government against my client i don't really like nazi analogies so i'm just going to say that the devil is in the details he was connected the record shows to the distribution of approximately fifty nine to seventy nine pounds of methamphetamine he led law enforcement officers on a high speed chase during which in history during which he had crystal methamphetamine and i loaded handgun in his pickup truck they had to set up spikes in the road to blow out three tires on his truck he then continued flaying with three flat tires driving on three flat tires and rims while also trying to run an officer off the road onto a bridge when he finally stopped the only to re enter it an officer less come testified regarding his belief that he was attempting to retrieve that loaded handgun to use on law enforcement officers this testimony i should note for the record that officer list comes testimony was credited entirely by the trial court the trial court stated he would credit his testimony my client was no i enjoy no doubt about it while he made numerous statements and threats that had extremely violent overtones he did not personally take action himself to try to harm someone and in particular to try to harm law enforcement officers i'm not my client mr melky was also convicted in this case of illegal possession of a firearm in furtherance of a drug trafficking crime unlike my client mr milky had an extended history of criminal convictions for felonies and misdemeanors including burglary selling marijuana criminal impersonation possession of methamphetamine and drug paraphernalia and illegally carrying a weapon mr melky light guns the record shows he was a felon in possession of a tommy gun which  he traded for methamphetamine as he did with other guns he possessed firearms including an assault rifle during drug transactions when he testified in my current sentencing hearing he flatly denied having a loaded gun during the law enforcement chides just a few minutes later he testified that he did not know if that gun was loaded one of those statements was not true and both were under oath unlike mr melfi my client did not take the witness and even want to court considers the factors and thirty five fifty three i it can constitute an abuse of discretion if the court commits a clear error of judgment and lying those factors now record here mr melky and my client or similarly situated defendants within the meaning of the statute will counsel we have the bowie case and cane case in two or three cases that say i defended it is not simply situated to a code t where he pleads guilty and cooperates with the government well your honor i guess i would distinguish those in and discussed mr maliki's testimony and how number one he committed perjury under oath and and also why i'm not familiar with all the factual particulars of the cooperate in witnesses in those cases as i'm describing here mr melky was a rather unique individual with an extended history you know what their respective guideline ranges were your honor i'm  trying to recall my my client's guideline range was a lie and mr maliki's i can't recall exactly but i want to say it was maybe between twenty five and thirty years  suspect we've we phone off on it two or three times isn't it overruled well i don't know if it's been overruled the court stated it suspect i know there have been i sort of cases i think the kind of case actually said that  mention that lazenby might still have some merit so and it strikes me that there might be a conflict between panels here although i've seen some decisions is there more conflict between sentencing regimes and as the  points out lazenby was back in the time when we were i started saying micromanaging when we were taking a closer look at the district court in their sentences and you know better themes greenbank case where we say it's going to be a rare case that we're going to question what the district judge does on sentencing so i'm going to different regime now you know we were playing one sport then we're playing a different sport now are we doing a different fashion show than a different fashion show ron i guess you know i would say with respect to that your honor that the facts here are more extreme with mr melky if you compare lassen being god god when i believe that lazenby was the more culpable in that case but nonetheless it was a pretty close call from what i saw and hear my highest so i enjoy he distributed more methamphetamine been  or was involved in more methamphetamine the mr milky but on the other hand with mr melky we're talking perjury an extended criminal history possibly trying to kill law enforcement officer so i think it's a bit of from the record take a firm attempt to take form of action to harm law enforcement officers hit he was obviously involved with large quantities of methamphetamine mr melky might be not as meth much as my client but nonetheless large quantities and especially when coupled with his other extremely aggravating factors in this case this demonstrates that these two are quote remarkably similar participants in the sighing criminal conspiracy in quote within the meaning of la and my client got thirty five years mr melky got thirteen and a half at their sit at his sentencing hearing and not the ninety six not knowing one way back here while congress was considering amendments to the sentencing reform act judge william welkin who was then chair of the u s senate saying commission testified before congressional committee and said quote disparity in my judgment is the one e mail that needs the most attention in our judicial system in quote i that the court considered aside from those noted by defense counsel in this case that led to the conclusion that there was reasonable suspicion to make this stop in this case and i would i would emphasize the reasonable suspicion is always we are required to have here specifically defense counsel mentioned that essentially all we have is some people's past history of narcotics and people meeting together in a business that's not all we have we also have an extensive calls but also upon surveillance and evidence obtained from confidential informants controlled by him so we have a source of supply of methamphetamine meeting with two other individuals who have a history not only of narcotics violations but specifically methamphetamine validations meeting at a business and what law enforcement in their experience described as what appeared to be consistent with our products trafficking meeting well tell us some details  they were there for less than five minutes and we also have on page eight of the record the testimony of michael brooks who is investigator with the north little rock p d that mr a hostile vera was back at his house within thirteen minutes and so he left his house and was back at his house within thirty minutes which shows you the duration of the actual meeting that took place at the business so you see the meeting was consistent with distribution what is it that makes it consistent distribution your honor in many cases and what the officers are referring to is that whenever they investigate narcotics trafficking activity they typically observed very short meetings at locations between people products history in addition to that we also had in this specific case the fact that mr ross all of our had multiple vehicles but chose to bring the vehicle with him that he used to transport methamphetamine he drove the vehicle he use to transport methamphetamine particularly to this meeting occasion and so we have that coupled with the fact that he's meeting with these particular individuals for a short period of time and then the subsequent attempts at evasion ok describe those and tell us of the velvet bridge area and while mr branka indicated that there was testimony that tripper said he went into that coming in store there was no testimony that he went inside the convenience store the testimony of the trooper was that he could not observe whether he went in or did not go in the convenience store at that time but that the defendant was on or off that explicit in back on within a minute and so he must have run if he'd gone in anywhere so we have that first evasion  immediately pulls behind or pulls behind the defendant and he immediately gets off the road then the defendant gets back on the road the trooper again starts to pull up behind him and he almost immediately makes a left hand turn onto a side road and so i would submit that that is consistent with the base of activity which is similar to that and gaudy and that we have far more facts here to support reasonable suspicion than the court in dotty had where it up held the reasonable  this issue because mr frank after judge holmes tonight the motion on the record mr frank a raise that point to judge holmes and he said that he recognized that fact but he regardless held that there was reasonable suspicion and noted that it's very possible to secret subject to a life guideline range he only received thirty five years in comparison to that life guideline range and the spencer court along with several other courts have determined or have have mentioned that it is almost it almost never happens that whenever someone receives a bolo god on a range that they're going to be reversed and told that they have to sentence them to an even further reduction below what was already given in a variance i would also point out your honor that with most the biggest difference between the two of them is that mr melky is the reason that the government was able to get to mr rojas all bare and large part because of his cooperation his extensive cooperation with the government was his cooperation mostly useful at sentencing or was it to make the initial case against him for an indictment it was from the beginning it was from the investigation on mr melky was that a source in the in the application to obtain t wiretap which led to much of the evidence against mr abbas all over and the case he also provided information about many of mr abbas all of ours methods including the use of the mercury grand marquis that we've discussed before so that law enforcement would have information for what he did he contested almost every sentence of the p s r and so the government's been in position to centrally have a mini trial and whenever we're put in that position we often have to rely on the testimony  because they are the people with that information that can be used to help the government prove their case and so i just will do you recall what mr milky guideline range was yes your honor it was two hundred sixty two to three hundred twenty seven months  contest in the allegations in the past are a frivolous however whenever you look at the fact that the district court affirmed almost everything that the government tried to prove in that case that i would say contesting every sentence in a p s r would be frivolous in that case including the indictment language which is essentially just it is what it is the indictment language with regard to  sentencing however mr apostle of error as counsel has conceded here today distributed quite a bit more methamphetamine than mr wilkie did in addition to that mr abbas all of our is on a wiretap discussing cutting people's heads off we also have testimony about him having conversations about a murder in guatemala where he's encouraging that sort of action in addition to that we had information on the wiretap where he discusses hiring a hitman to kill one of his distributors for failure to pay for three thousand dollars and i would defense counsel pointed out there are hostage not personally take actions to harm other people that's right he use other people to do his dirty work he did many things himself but as the record reflects he likes to use other people to do his bidding and that's exactly what he did with mr american and he went to mr american and attempted to have mr american clean up this mess by taking care of a confidential informant that his government witness and i say take care of and i think that's interesting because a lot was made of the garbage used by mr american but when it comes down to it the violence that was involved in this case and i think that is is the biggest difference between mr monkey and mr asala bear with regard to the factual determination made by the court and a couple of of the arguments and defense counsels very i don't believe the district court actually made those specific factual findings specifically the mr rojas all bear had multiple counts of methamphetamine in his residen district what the district court found from what i can tell from the record was that he did distribute methamphetamine from his home and he stored methamphetamine from his home but if if the court wanted to make that finding there's plenty of evidence to make a finding of multiple i think the court did not credit mr americans testimony in that regard because it could not be further corroborated with regard to the evidence that mr haas all of ira was involved in methamphetamine distribution prior to and there's ample evidence from the record to support that finding and there is no clear air the credibility determinations of that homes are virtually and reviewable on appeal and in making this determination we also have the testimony of michael milky that he was involved with an individual that he called crane oh and another individual that he referred to is either juan or raul prior to  one premier left town due to the big winner indictment that that's when ross all the all of our started exclusively dealing with mr maliki there was no longer another individual involved in the transaction we also have the testimony of christine birmingham indicating that there is a three month period prior to july two thousand and eleven where the two are interacting with one another in methamphetamine trafficking with regard to the arguments that  point out that under the bates case in two thousand and ten the district court is busy very free to believe some but not all of the witnesses testimony and that's exactly what he did here and he credited what he thought was  reasonable and would be corroborated he credited mr o'keefe testimony to the extent that he found it reasonable and in that determination the district court is in the best position to make that determination about the credibility of the witnesses he had a lot of witnesses before him and was able to observe and interact with them and was able to see the case from beginning to end and deal with the twenty plus defendants in this case don't think that there is much dispute really that a gun was found in his home and that at least one magazine was found in his home and the testimony indicated that there were actually three magazines found in the home and there's no era's conduct was far more serious and there was much more of it however i think that whenever you compare the robot case with cases like dowdy and williams that you definitely have the reasonable suspicion here and you don't even need to reach they tell you ation argument  his drug dealer car to a location and makes them in princes from the yes your honor however i think that while there was more direct evidence about the actual hand to hand in williams here you have more facts about the investigation leading up to the stop in this case and you also have in addition to what appeared to be a narcotic transaction according to officers who have experience in investigating these types of crimes not on behalf of mr white thank you ron i got a minute and minute half here just to cover a couple of things you're correct the investigation didn't include involved broadway at all his name was never mentioned during the investigation of the wiretaps with regard to the media i thought there were two but but no wiretap information they had no information marsett or white until november twenty second with regard to the meeting his nose and he spoke about that with regard to the meetings that took place they saw no meetings they saw mr all has to go into  a business on by mr struthers and i saw mr white come out of a business all by mr struthers there's no indication at those two ever met and i think it's a stretch to say so with regard to dowdy and i know that ms any relied upon that here's the difference mr white leaving but they never observed any contact between mr today observe him go to them no no he was already there he was at the business already under doughty you have the facts you have a deserted pharmacy parking parking lot on a sunday night at ten o'clock  know you had in that case a drug area and officers a brewer what they thought was illegal narcotics street sales out there in front of them and then also with watch you had long guns you had a time at night you had a someone who's that watching this during the time of night and then cornelius which talks about the passing of our past history of illegal drug activity i think it should be a factor in this race properly so but that's the only thing that they had in this case so i'm asking you to rojas be brief i have less time than mr bank and first of all one of the reasons the judge sided for a do sing my client's sentence from life to thirty five years was he never took action we can't say that about mr melky and thank goodness we don't have to ask the question what happened to law enforcement officers because they taste him before he could get to the gun yes we contested expensive parts of the p s r but my client did not take the stand and commit perjury under oath testimony about methamphetamine before meeting my client was very confusing in inconsistent one point he was getting ten pounds of meth a week for my client and i based on that the agent's report when i asked him about mr melky about that he he said that the agent was not being truthful primo i'll decide generally i recall his testimony being very inconsistent about those various individuals and time frames and i believe the record will demonstrate that of those three magazines mr missing and he referenced i think the d a was only able to produce a picture of wine or account from one if i recall correctly i'm a rookie i think the court for its time consideration and