first the district court erred as a matter of law by apparently silently making a new drug quantity finding without any explanation which also hinders the court's appellate review second the just record as a matter of fact because spencer and i apologize conspiracy histories distribute fifty grams or more of crack at sentencing in two thousand and nine the district concluded that spencer was responsible for four point five kilos or more the district court never adopted the p s r in this case and in any event three the relevant conduct guideline and the fact that it has to be the scope of jointly undertaken criminal activity that was agreed to as well as the requirements of reasonable foreseeability and that these particular actions have to be in further e of the specifically jointly undertaken activity there's a three prong relevant conduct test that there are dozens of cases from this court and your sister courts noting that the scope of drugs attributable to an entire conspiracy or not automatically attributable to every defendant and in this case for example as the government noted as to the campaign of the conspiracy terence peters the court did say that it thought it was a significant amount of crack cocaine one hundred fifty kilos but spencer involvement was much more limited than terence it every defendant gets their own relevant contract to attribution that's the clear law of drug sentencing so in this case you know in my brief in the second half of my brief i very carefully went through and tried to figure out the exact evidence that could have been attributed to spencer the government didn't even respond to that allegation relying instead on this completely entire  or you never you never objected well he did i'm trying to member i don't believe the council which was not our office at that time did object to the drug carney finding but it didn't matter at that time under the drug guideline not spoken to it but that your sister circuits are clear that district courts may although they don't have to make further drug money findings during a thirty five answers no that's not heard me on our argument is that the district court didn't do any analysis at all and didn't make any findings or any conclusions about relevant conduct when it denied it to thirty five eighty two motions so it's not that it could not have done so it's that the district court did not do so it just assumed in eligibility without any explanation or makings of findings or conclusions that would make spencer ineligible as a matter of law and so under but all of the circuits that have addressed this in the published opinion agree that the judge can do that but in this case the judge did not do that which is which is the first legal error that we raised and so he should have made findings about under one b one point three about the scope of the jointly undertaken activity and what is reasonably foreseeable and what is in furtherance of the jointly undertaken activity as to spencer peters before he just concluded that he should be determined now to be conspiracy and automatically attribute it to every defendant that's illegal under the relevant conduct precedent of this court and every other court in the federal system and that is what it appears the government is asking you all to assume and what it asked judge pain to do but that's not relevant conduct has a definition and it has a methodology and that is not the methodology you can't just take the whole conspiracy and lump it on to every single participant in the conspiracy in addition as we pointed out spencer was in jail for more than half of the time of the conspiracy this is not an argument about withdrawal it's an argument about jointly undertaken activity within the meaning of one b one point three so you can't just say everything that happened for eight years is automatically attributable to everyone never mind someone who wasn't joint undertaken if we were in a conspiracy between you and judge gregory does not necessarily mean that i am jointly part of that i could be but i don't have to be and that's why you need these specific relevant conduct findings which again this court for example in bolton or and white and every other court say that the court has to do that analysis for every defendant before holding a defendant responsible for the transactions of his coconspirators and that analysis never happened at sentencing in this case at the time of sentencing i think it was har and of course was not raised but now it is harmful because if spencer is responsible between four point five and eight point four kilos the low end of his range is now two hundred sixty two months if it's between eight point four and twenty five point two kilos the low end of his range is now i think it's three hundred twenty seven months spencer serving a four hundred eighty month sentence so if he's responsible for the jointly undertaken activities for being less than twenty five point two kilos we're talking about his eligibility at least to seek reduction of many from what was then guidelines life and in the statement of reasons the written statement of reasons and also in the sentencing transcript judge payne said it was because it sponsors limited role so while he did have the three points for managing the record says basically at times occasionally when was in trinidad visiting family or i think locked up i couldn't get terrence in jail records because he's not my client his statutory mandatory life he's not going anywhere but that is an interesting point that's exactly what we think the trial record in this case shows as to spencer so as a study you know this court at this point could itself make an eligibility determination as the tenth circuit to the battle or it could remain and for judge payne to do so and do an actual relevant conduct analysis in the first instance which again never happened at sentencing never happened in either thirty five eighty two motion but either way we would ask the court to reverse for that for the legal error of not doing a relevant conduct analysis on the record and just summarily holding spencer and eligible as a matter of law and then as i said i think it's within the court's discretion to make the eligibility determination itself which is a question of law where you could ostrich pain to do that and but in any event either of those released would be what mr peters  good morning a place court peter duffey for the united states as a court as defendant argues that the district court judge bank made it clear error and finding that he was ineligible for sense reduction under section thirty five eighty two but the district court was quite proper and finding from the record that he was and eligible that the attributable drug way to spencer peters was well in excess of twenty five point two kilograms of crack cocaine and the facts before the district court at that time was that he played a leadership role in this conspiracy that he worked closely with terrence peters who was his brother and was the clear leader of the conspiracy but that spencer he was making the finding i mean the court cannot read the record i don't believe judge payne was intimating in any way that spencer peters had a very limited role in this conspiracy he was comparing it to the  week and found well in excess of four point five kilograms so that's report found in excess well in excess of four point five kilograms because that was the highest rating under the guidelines at that time i don't think there's anything in the record that indicates that he objected to that drug way he did object to the leadership  context of the sensing hearing itself as i said he did object and we did have a hearing on his objection to the leadership role and so we went through and both made arguments for that he made a finding that the peters and found but found him and made several comments about the original seven saying that he found the three levels he said that he was second only to terence peters that he supervised the business on subordinates and that he was as judge payne noted he was c e o when terence peters was was not there he noted on the record that this conspiracy was of long duration insidious in nature and a scourge on the community and while there was no specific finding on the way as we noticed terence peterson is and came right before spencer peter sensing i think that might have been part of the confusion with judge van and not and not making uttering the words i'm accepting the second right well let me let me address that then well first terence peter sensing the drug weight was not an issue there was not contested and so under both the science and hearings as thirty two points out the judge is not required not mandated to make findings on things that aren't contested before and at the time so there was no real reason for the judge to make any finding other than this was in excess of four point five kilograms and and that went that sat the count on range for him to didn't do that and the order the order that he made in response to the thirty five eighty two motion to get the order did it well it didn't make a specific finding we don't believe that he had to make a specific finding but what it does do is it specifically says that he that he has considered the defendant's motion the government's response and the reply and so let me touch on one thing on that point i've read the defendant's original thirty five any two motion i don't see where he ever rises drug weight as an issue he certainly didn't do it in this first mission we were sponsored and said he's an eligible it's way and i think he can he can file a reduction and ask for a reduction i mean he the only reason he gets a reduction under thirty five eighty two is is a reduced guideline range in the only way you get a reduced guideline ranch here would be drug weight so i think i'm just pointing out that he doesn't raise the twenty five point two kilogram argument either in his first thirty five eighty two motion or in his reply no doubt well let me point then to why i think that it was appropriate because i think the judge did find that it was well in excess of twenty five point two killings from his order and i think it's clear from the record trial record that he could do that easily this is first this was a conspiracy that began in two thousand and that the government's evidence at trial for a lot on many of the  conspirators matthews and johns being the main three who also had what they started into this conspiracy were invited down matthew started in two thousand and upon his arrival the defendant was already down working with his brother delivering crack collecting money that's one joint to panic starting at forty nine and two thousand and two he described the defendant were making these trips to new york and the green and the green thunderbird which was his car that was posts that he was involved in that i would argue kept his memory fresh on this on the facts of this case a prior thirty five eighty two by spencer peters which a court  denied and so even though there are several years between the trial and this thirty five eighty two motion judge was all along the way there was litigation going on in this matter and so i think that the court subsection b will subsection a's common sense it's you're held accountable for your acts and omissions and aiding and abetting subsection b you may also be held accountable for the acts of others now there is a difference between simple conspiracy liability on the one hand and relevant conduct specific drug weight on the other but here the jointly undertaken activity is described  under the sons of god and as a criminal plan scheme enterprise undertaken by the defendants whether or not it's charged as a conspiracy will hear it was charged as a conspiracy and it's not really not really that complex the jointly undertaken activity once we have a source in new york we make weekly runs to new york we bring one to two kilos down per week terence peters among others cooks it into crack and we we have a house on fifth avenue first starting in two thousand and two and then they move to a house on detroit avenue that is our distribution center we have a core group of people jens math is spencer peters terence peters and a few others that work out of this house and that's the jointly undertaken activity now the question then is even though say when spencer peters was locked up for a short period of time in two thousand and two is it for when the runs are continually being made to new york is that forseeable to scrunch of peter's and we think that it was forseeable he wasn't locked up for very long and when he was released and two thousand and three according to several witnesses he came immediately back to the distribution house on fifth avenue and immediately picked up where he left off was the was that part of it within the scope of the scheme and furtherance of the scheme and so this is three things that bring that from a conspiracy liability and to relevant conduct and we think all through from two thousand certainly up until his arrest in may of two thousand and five and as i point out my brief even after he was arrested in may have two thousand five we had a witness testify at trial that he was recruiting people in the jail detailing this scheme specifically we make runs to new york we  basis starting in the year two thousand all the way through there were some brief times only stop but if you add up even five years of a conspiracy where there isn't a new trial testimony  point five which was your right because they think you hit the statutory ceiling and it was no need to because this would cause what you do now you have to go back and see whether or not a person is an eligible for that which we think people broadly ought to be get credit for because they've gotten too much time to look at the terms of demographics all of those things that are too much that it's not want to say oh well but what if i was enough no you have to make a filing don't you start with them my colleague's allegation that spencer in his prostate seventy two thirty five eighty two filings didn't raise drug weight if the court looked at his pro se motion that cheney seventy two he references four point five kilograms if you look at his reply more specific greater finding they don't always but they can and in this case they did not all it said was four point five with respect to these continuous runs from new york as mr duffy noted later in his argument they were not continuous a seven fifty six says there were times when no drugs were coming down from new york this is exactly why as chief judge gregory notes we need specific analysis in this case because it wasn't one two kilos every week for eight years and even if it were spencer was not always there and he was not always jointly undertaking that activity regardless of his physical presence this is the relevant conduct analysis that this court requires need to be there i agree or that's that's i'm sorry i thought that's what i just said but he  noted and makes the crack a trigger at the same as the powder trigger for level thirty eight which i will tell you right now is four hundred and fifty kilos spencer would like to know  explanation and irrelevant conduct analysis the factual error is that he's not properly attributable under the relevant law the legal error is the fact that he did not make a further finding using a proper legal analysis when he denied spencer's thirty five eighty the court does he deny he deny the reduction and the he would have been if it had been less than twenty five points he would have been and the fact that when you look at this conspiracy overall it's hard to believe that mr spencer peters wasn't involved with his brother and didn't play a key role in it which lasted for many many years and i'm fairly disturbed by these questions of recruiting out of jail conspiracy and recruiting after record at the sentencing or in this current proceeding and i would urge the court to look at judge posner to find decision in davis and the first circuits decision in kind of area solver they are both exactly equal to this case and spencer deserves an analysis and will show that the relevant conduct is not equal