you this is a situation in which the ultimate cooperated with the government mr was was a target of the government thinking he was some big time drug dealer and over a period of months they try to get him to do something criminal and they told me failed they didn't walk away from it but rather then they came up with this second course of action which is referred to as a sting operation which many of your colleagues across the country have criticized that would last few years and what they did is that he told them about multi kilograms of cocaine and heroin coming up from florida and how he could to so much money as they usually do in these cases they make it so high so that the guidelines that apply are up in the sky and mandatory minimums come into play and of course they told him during the meetings that these were vicious people and violent people and therefore he had to be armed and that he couldn't do it by himself but he had to recruit other people and mr cruz became involved he would drive in to the city and so he knew velez had not only a car license to drive which were less than half so he got them to go along with them and he had been present at some meetings with the government agents happens usually in our courts here is this something that's worked out between counsel and the u s attorney and the u s attorney's office the tyrant that dela cruz is busy in amongst that all the men involved was the most minim range and the government and the feds council worked out the elocution which is just why did you find out that the district court was going to consider this information about his role in the surprise yes at the sentencing when she said i'm denying except as responsible absolute is not true that's abstract think it's absolutely so i think the government was also because the keep in mind mr della cruz first language was not  drug dealing in the past that's simply different that should have nothing to do with acceptance of responsibility ok respect as to the crime he pleaded to he knowledge what he did this no there is no that someone is going to point to that he had something else to do at the robbery he was not on he was not to confront the people are going to they have a vehicle in this fantasy robbery at all so there's nothing there whatsoever what was going to proper in it because the bureau of prisons uses what's in there right in determining what kind of an institution someone would be put into all right and if they were before any other court i suggest that this i would not be up here arguing so we clear with acceptance of responsibility agreed upon by the government nor the government was not objecting the government did not say he's not accepting responsibility because he did this nothing more than that we ask of someone when he enters a pl should be affirmed under section three a one point one of the sense and guidelines a district court is directed to consider whether the defendant truthfully admitted the conduct comprising the offense of conviction and truthfully admitted or did not falsely deny any additional relevant conduct can i ask you specifics about that in your sentencing memories he was acting sole is the driver for the robbery right in our sensing memo your honor  submission that the defendant had other responsibilities which included taking part in the planning of this offense and we noted in our response to talk of the violence that even at the federal hearing he wasn't going to go into the van is others were supposed to do with guns drawn and actually commit the robbery yes and he said he was there solely to transport the drugs as well who was right as director and then the district who are in the sole reason for her concluding that he wasn't going to get some acceptance was he misrepresented that he was just a lookout driver right well your honor i think the district or gave other reasons as well i got the traffic at the transcript one forty six to one forty seven i know that she considered the prior drug dealing and splitting of the proceeds for the sentencing factors but obviously with three one three one point one except his responsibility the violence aspect was the only reason she gave you gr p i'm not sure i do agree with your honor she pointed in addition to the defendant on sensing submissions and pages five and six where he indicated he was going to be a lookout and i mean he also he didn't take responsibility for his role with respect to planning he also you know when it came out he was present he said he was present but he and he also took the position that he was going to get a fifteen thousand dollars fee he affirmatively represented that to the district court and later on in the sentencing the district  it's absolutely clear that the defender was heavily involved in this he was involved in a plan and he participated at least a couple of meetings and when you can repeatedly say i'm a driver and a lookout i'm a driver a lookout i'm only going to get a fee and you have a full blown phatic a hearing where comes out there really he didn't deny that there was he was there when there is planning going on but repeatedly in a sensing submissions he emphasized that he was not part of the actual robbery crew which is minimizing because even if you're just the driver when you say you're not part of it actually is plea allocution he said it was the look on the driver and he mentioned that he had been at a planning meeting and he measured to say it was going to be robert wright and he said yes yes so what was the basis for the circus responsibility a district court  when it comes to the offense a conviction a district court is intitled to a full unraveling of the facts to a full and candid explanation when you have a defendant come forward repeatedly and say i'm a lookout and driver i'm playing this minimal role i wasn't part of the actual robbery when the government responded to that in our own submission saying that he was he was understating his role we said that you know yes on the day of the robbery he's a look at him and driver but he has other responsibilities in the district or at the end of the day take which told you from your s summation the government the reason you gave him the lowest guideline range of the defendants and you explain and six pieces or six page of your census mission why are we giving him the best break here this was due to the fact that the government determine the don't ruses while the defender was claiming you know he was only going to be a lookout this characterization understates stella cruise's role substantially in fact like all of a six other co defendants was an intricate part of the robbery crew at sensing we also noticed our cruise's role was to act as a driver of the one of the vehicles that would carry the stolen narcotics furthermore dollar cruise was present for q crucial planning meetings leading to plan robbery you never deny that there's no dispute that the defendant emitted that he was going to be a driver to look out and he didn't deny that he was at some planning meetings but when you repeatedly say i'm a lookout i'm getting a driver's fee i would also know your honor that the second circuit case law says that this court first or the final has to be without foundation that's a very high standard and second of all this court can affirm even if you find some other basis in the record it doesn't have to be the basis provided by the district court but we do believe the basis provided by the district court is more than adequate to affirm  in connection with the exceptions of responsibility decision i believe the district court only took that into account as a thirty five fifty three factor so the only issues is involvement of violence no i think the issue is when it comes to the offense of conviction you have to provide a complete explanation of what you did and when you get up repeatedly and say i was a lookout i was a lookout and you affirmatively represent i was going to get a fifteen thousand dollars fee the court holds a full blown  hearing in the side no you were more involved in that you were the go to man for mr velez you're involved in planning and also you were going to just get to go to for drama and also he was going to be involved in selling the drugs which the district  into account my apologies i may have misunderstood the question i don't think the district court took into account the prior narcotics trafficking that he had been involved in which is one of the subjects of the phatic our hearing in determining acceptance of responsibility but i think with respect to what he did with respect with on the offensive conviction with that which the district court has to consider in deciding whether acceptance of responsibility is appropriate it appears that he did take that into account when deciding that he had fully owned up to his it said a one sixty one sixty one i do credit for was his testimony that you were a close friend of his you're involved narcotics trade and that you understood that there would be sixteen years of cocaine and five kilos of heroin on the other end of this and that you believed you st after the fact he goes further down and he says i was only going to receive a fifteen thousand dollars fee and that was his position and judge forrest ultimately didn't believe that that was true she said that on the record at sentencing and when it comes to the offens significant a factor we've not talked about which is that your car had an empty suitcase an empty fabric bag which are tools of the trade of robbers who expect to take home fruits of robbery not just deposit into their pockets certain money that may be paid if you are paid large sums of money or certainly if you're paid in the form of cocaine and heroin in his car there was not the government's not taking the position that mr della cruz that day was going to be involved in violence just to be very clear about that but he played a role in the actual mr dela cruz had twelve to the probation officer doing the interview as that a crime that was totally fools all that happened is what usually happens counsel says well in so far as a crime he relies on his elocution so the judge was absolutely wrong also the judge was wrong insane that he just said he was a lookout totally wrong so she was wrong in both both instances there and everyone sort of missed the dollar close he was not when you you have to do is indicate your involvement you so much as i understand it that spews really about what he admitted with respect to his role and he arguably minimize process violation and i think the example i gave is the best example i can think of if that's not a violation of due process and i look which some will tell me example the example i gave about someone getting up and talking about seeing the gun over periods ago no time due process i don't know what it is and to criticize council for raising that is it's it's incomprehensible thank you very much thank you very much