they could see just what they please the court my name is frank and i representatives who sell goggles likes lottery he handed my client a brick and i don't mean a brick in the form of narcotics i mean a brick in the form of a father who is a career criminal and a mother who was recently indicted for the same offense conduct with which my client had pleaded guilty both of them telling him what to do and when to do it likewise both of them telling mr rivera what to do and when to do it the only reason my client got involved in this became a participant in this offense was because his father after he was deported to mexico after serving prison time in this country for drug related offenses called him and said the only way to get the family back together again is for you to help me in my drug business so can i just tell you what worries me about your argument  that i mean the characterization of the facts that seems to persuade the district judge is that this is essentially a sell gado family business the father is down there in mexico let's assume he stays there but he's using his son he sues as the on the scene for us manager to use the word and hey sues isn't bad as middle managers will do directing at least rivera maybe not i mean the judge says now maybe it's just that one person and there are lots of things covered by the managerial and handsome and but i'm having trouble see that's not a permissible way to look at the facts and then the judge actually takes the thirty five fifty three factors into account and  one eighty eight and that the sentence imposed actually was a variance upwards and therefore there was not an adequate explanation given for an upward variance or departure in the circumstances but i think the key point to answer your question is the relied on this court's opinion in figure world and there are parallels between that case in this case indeed some of those parallels are which would seem to indicate passing on of messages but in this instance judge what makes this a little bit different in the first instance is rivera went down to mexico and was recruited by the father lorenzo salgado and had multiple meetings with him in mexico and was constantly available to him by telephone and what really is a significant distinction between figure role in this case i would respectfully submit is that yes the court wrote in federal what what was really a key factor it was how the defendant in that case insulated himself from arrest and prosecution because he would have his meal will go out and make the deliveries in this case rivera the alleged mule the alleged supervisor is actually in the safety and security of the house with four kilograms of heroin la my client h is on the streets exposing himself to the risk of arrest and prosecution in order to conduct a thorough transaction and so it is a critical distinction i think from figaro the only case the district court relied on until  how do you get around a harmless error analysis here assuming we are correct that the enhancement should not have been the court specifically that that he would have imposed the same sentence very upwards from the proper rating without a three level and here in the answer then i have to give reasons for that but the court now the reasons have to be tied to thirty five fifty three eight and that factors in thirty district court here to only go through those factors and in fact when he was john he asked i don't think you were the lawyer representing the defendant at the sentencing but he asked the attorney he had considered all of his primary our arguments in mitigation and the attorney said yes and anybody had a rate at that again at the end to me attorney said he didn't have anything further so why wouldn't that explanation be sufficient justify an upwards departure well i think there are actually two potential waivers or harmless error issues here one is when the court turned to defense counsel  outweighed any of the aggravating evidence i think the court mentions the taco bell incident which is really just one night in a person's life the government wants to define him by that one night when he was drunk and it really c harm to anybody was inexcusable of course but it's certainly not enough in the court also said not violent used to offenders they had parents and he did mention all those things going back and forth but really where are the competing when we ha that even though we don't have say the federal rules of evidence applying at sentencing proceedings there's a general rule that says evidence on which the district court  of rivera and i find in the pre sentence report a conclusory statement that he's somebody who directs when our friends who are and rivera and i can find a little bit in the manager absolutely your honor and the district court had in front of it on the record undisputed factual material and will just tell me i'm i've reviewed all of you what are they the grand jury transcript complaint and therefore there's conflicting and not just puget evidence respect for your honor i disagree i believe that the defense counsel stated explicitly that the grand jury testimony of rivera clearly disputed how can we tell what those materials were you're aren't going to record makes clear what the materials were that both parties relied upon in relation to this particular argument but you really can't say that the grand jury testimony in tot the material because you've been discussing there are parts of it that were on disputed that lorenzo was the kingpin for sure everybody sees that but there are parts of  for what giving directions for what so mr sound out of the defendant what was i disputed is my questions are it was not very articulate but it is giving if you said oh he was giving him directions but to get the enhancement you have to be more than just giving directions so what is the undisputed evidence that he was giving directions about absolutely your honor mr rivera was directed by the defendant in the following things as as proceeds into the trap in that car and drive it back to benson village of the stash house that has you still got a lot rated on another occasion he directed mr barrett to go to phoenix arizona in that same car to pick up narcotics from another contact on yet another  and in addition there was an occasion where when mr a varilux on his way to one of the defendant called him back and said come back to the father right now and don't ask me questions start from the pretty much read yeah i mean all of your evidence really from the grand jury grand jury testimony was corroborated by this intercepted telephone call between mr rivera and the defendant in which the hierarchy is a little bit more the pardons argue different interpretations of those materials but the materials themselves were undisputed in addition to the support went on to clearly express that even if three b one point one had explained why that was he stated that there is a difference between a manager in a five person conspiracy who manages all five people and a manager who manages just one person in a five person conspiracy he stated the government really conflating funds conduct and look at one example of that and that would be that the money to case agent in the government throughout the course of the proceedings that the mother veronica mendoza controlled the purse strings everyone agreed with