circumstances for the underlying criminal conviction as well as the same facts and circumstances during the sentencing proceeding in both of these cases this is a government's appeal and it raises a recurring issue in the eastern district of washington where there has been a consistent pattern of smuggling b c bud marijuana from canada into the united states using backpacks and the issue here is when there is a joint  the border patrol agents tried to follow those those individuals it was late at night and they didn't catch up with that to him but they obviously tracked sign of these individuals they crossed into canada these  interestingly enough the day before which would have been made sixteen the mid may fifteenth of two thousand and four members of the royal canadian mounted police were surveilling doing surveillance activity in and who is also another named coconspirator and they maxed out in the vancouver area and it was again the next day that these individuals were seen crossing into canada from michael stockton shed both of these defendants  mr harris admitted that they were involved in the east and a prior activity of curing marijuana smuggling from canada back into the united states and it was involving joseph through dole and and michael stockton so about a month later after these border patrol agents observe that activity june seventh of two thousand and four border patrol agents were again surveilling and watching this smugglers trail and the observed seven individuals coming  from the canadian side of the trail head if south bound with backpacks on their back eventually those individuals were observed right walking right towards michael stockton shed and entering the shed or instead rushed to the scene several individuals were seen running out of michael stockton shed and those individuals were arrested five canadian citizens including the defendants mr mann and mr harris as well as jo consisted of five hundred forty six packages of marijuana and the total amount of marijuana was two hundred thirty five heeler grams eventually these to venice mr minister harrison as this you have to ask who did the defendants conspire with did they conspire with mr trudeau did they conspire with each other or today's conspire with mr stockton and all the other individuals who were charged and it's the government's twice accompanied of other individual smuggling of marijuana and they twice crossed the border to smoke the marijuana in halifax made zone was a singular event anything in the plea agreement that indicated they argument that i have for the court and i'm going to defer to my i guess co counsel or similar counsel is with regards to the conspiracy of the government is correct me two people to conspire however i would dispute that my client conspired with seven hundred other individuals i think the conspiracy is between the individual wants to get the marijuana to the states and he needs to find somebody to do that he makes an agreement with one individual on how to do that he finds other individuals negotiate with each one and tells them when all to be there and so in fact my client conspired with one individual to come across and it benefits the head in charge if you don't talk because then you don't know how much you're being  you're doing it and how much you're being paid and it also benefits if you don't know a lot and if you don't know who they are or with other people are less information for the carriers of the marijuana the better for the individual who was orchestrating it so i would agree there is a conspiracy and they argument brief thank the brief basically states the defense position i would begin by saying for sentencing purposes post booker the standard is reasonable this was the judge's sentence in light of the fa entire quantity under the guidelines if we were satisfied then the government was correct and then guidelines and then incorrectly calculated your fence level or whatever  comes up that's an interesting issue if you are i would indicate to the court that based on booker based on eighteen u s c three five five three eight and the factors implied there and there is not a per se on reasonableness asks the sentence indicated an eighteen month sentence under the standard i guess the argument is well the judge just said he's responsible everything but then look at what he carr back and under those circumstances could the judge not have held him responsible for that one backpack even though the entire conspiracy involved seven different people i would argue to the court that the judge could reasonably have found even in light of of of the entire conspiracy consisting of everybody if the court finds that that is the appropriate criteria that it's still sense and take a month under booker t i guess one of the questions is sort of learned from the these cases that say well i don't really think that you should be carrying with the whole amount and so i'm going to find the facts of this where and where there's room for flexibility because this isn't the only one  what the court heard in terms of at least my client's rendition of what occurred which was uncontroverted from start to finish and the court had that in addition to the factual circumstances this was never controverted by the government i am assuming because i don't have the privilege knowledge of what occurred in the other sentencing but i think there's a reference to the court saying something to the effect of you know i've sentenced two other people and i've heard the facts it's minors hardly counsel i'm bothered by one thing based on the facts of this case based on my understanding of how these specific individuals became involved based on my understanding specifically what these individuals were entailed to do they were independent backpack i think judge gould raised an interesting point in terms of and that's specifically the prox of paleface moves on very part of it what were these people responsible for doing did one of them assist do you know did one of them hold a flashlight while the other one's going no there's no record of that because there wasn't these were just still the individuals individually paid didn't know each other until they got off that truck to take this backpack to follow that's how a fact was over and so therefore we measurement of each backpack attributing one back to the person so they take the entire quantity divided among the of individuals i think i feel that it's quite appropriate i believe the guidelines supports when you don't have the distinct knowledge of each you take them person carry and i think it was on the high in your eye because when i skied my conversion i think sixty seven thirty eight thirty eight or so would have been approximate almost seventy or eighty pounds per person which i think it's  a stretch to say that anybody could have cared any more clearly it could have been last because we don't know what the quantity was on the first trip so actually without doing and testing it it would have been actually reasonable contest well we don't know how much was on that first trip so how can we even quantify that i think it bears actually towards defense benefit that this came up the judge said in reason i don't know how much was in the first trip based on the second trip i find it reasonable to just presume that it was the same amount of quantity that first trip but in fact i think it would have been removed for the defense to contest well you know what we don't know how much was there so frankly that should be zero and say there was a conspiracy but we don't know how much that would have been pretty unreasonable so in terms of i instance you are when the court looked at the facts of this case it felt that providing a single individual or these individuals individually who know nothing about each other or hire totally separately the only connection they had was one followed the other behind the other for gosh knows how many miles to a shack it was not correct to hold them entirely responsible as a conspiracy in the traditional sense and i would just like to point this out because i think it needs to be mentioned we all talk about well a conspiracy involves two people agreement that's not the only elements of a conspiracy a conspiracy  the object what was the object of this conspiracy there is no evidence of the government can present that says my client had the object of securing and assuring that the entire point he got across the only evidence that was presented to the court by the defense as well as the government was that he agreed as an object of his conspiracy with mr trudeau to carry one backpack on each occasion that is the only thing that can be proven and it's just the circumstances they very good thank you i'll be brief four points first the question is who did these defendants conspire with counsel says that there was some person in canada that they cashed that conspired with i'll note in this excerpt of the record in this across the border on the day they were arrested and that is to look at this is that in the most narrow context the defendant should be responsible at least for the marijuana that they carried and at least in the very narrow review this the issue in this case is not reasonable miss the issues here i believe is whether the district courts appropriately consider the guidelines and in this case i think the court h third with respect to the calculation of thirty four pounds the district court analyzed it this way the court said there were two hundred thirty five plus kilos of marijuana in seven backpacks to thirty five divided by seven is approximately