it please the court katie sheppard for mr chavez there are two issues in this case the first is whether the district court erred under the sentencing guidelines by denying a role reduction based on unrelated conduct the second issue is whether the district court plainly erred by relying on arrest records and speculation in sentencing mr todd as in this case mr chavez pleaded guilty to importing forty two kilograms of methamphetamine from mexico to texas in two thousand and sixteen he has two prior arrests in california one was in may two thousand and that was an arrest for driving a vehicle across the port of entry with thirteen kilograms of marijuana in it and this is what the district calls the bridge case with the thirteen keys of marijuana and in november two thousand and fifteen he was pulled over for speeding and the car he was driving had two hundred fifteen thousand dollars in it because the guidelines require the district court to focus exclusively on the office which under the guidelines definitions means the oftens of conviction and all relevant conduct the rest are clearly not the office of conviction and they're also not relevant conduct i would direct the court to paragraph nineteen of the p s r which does not include the arrest as relevant conduct that's where the probation officer and the district court by adopting  calculating the drugs so we have two issues before is just quickly in standard view for the two yes when i read the sentencing hearing the whole discussion of arrests and arrest come up all the time criminal history there was no objection hey we can't have this  so i would think that we'd be reviewing the arrest portion of your argument for playing there but the minor rule reduction denial for whether or not it was clearly erroneous to decide that your client hadn't shown by preponderance that he was lesser is that fair to say you disagree i agree that the second issue about relying on arrest records and speculation is subject to plain error of you and i would argue that the first error of relying on unrelated conduct to deny mitigating role is reviewed under the clearly erroneous standard for overall reduction in the district court as you said discussed the arrests frequently the court said that it wasn't his first time he was driving drug proceeds and he had the other bridge case where he's doing what he did in this case and in response to that defense counsel said but as far as the situation right now and what's his involvement in this particular case your honor again it's just it's driving a vehicle that had drugs in it and because  guidelines the court should be focusing on the off chance of conviction and the relevant conduct that is my argument that the defense counsel did preserve that first air ok i would think the arrest discussion especially when it wasn't just bare bones in the p s r in california was pretty close in time similar situation in the defendant in the discussion if i remember didn't say i didn't do that he sort of said hey at least if it's going to be concurrent running together right he made some comment so at that point you just got sort of a free wheeling discussion about recent similar activity and my thinking would be how would there be a miscarriage inherent in that discussion remedy would be that to give the district court an opportunity to decide in the first instance whether the facts of this case merit and mitigating the options was if i remember i was on a panel right correct i thought that's one where everyone was talking about mules are vital they're irresponsible yes the probation officer did that here but the government in the in the district court never said that's why he's losing it so we don't have that issue in this case correct and i think that was the remained which i think subsequent colleagues of mine even have limited further than what i wrote but i think what sanchez beer will continues to stand for is the idea that if the district court makes and legal error in denying a mitigating role reduction and the mitigating role facts are debatable it should be the job of the district court to way the facts to decide whether to give a mitigating role without the legal heir and although the legal error in this case is different because the court relied on unrelated conduct that wasn't the office of conviction or didn't qualify as relevant conduct into the guidelines in light of the guidelines commentary example that says that someone who does not have a proprietary interest in the criminal activity and who is simply being paid to perform certain tax tasks should be considered for a  the drugs across the bridge i would also direct the court's attention to the fourteenth paragraph of the p s r which says that mr chavez was likely hired by an known drug traffickers to smuggle the methamphetamine so it's another indication of a record that there were other participants involved and as i was explaining with the guidelines commentary with someone who doesn't have a proprietary interest and is simply being paid to perform a certain task that person should be considered for a rol what you just told us that he said he was paid to transported her to just say others you know he was doing it for others he said he was not the owner of the drugs he didn't know the type and quantity of the drugs and he was being paid  right and there isn't the usual stuff he's going to phone that shows he's going to do a rendezvous point and for me importantly it's his car and he knew the pure amount was in there that's not looking like lesser to others that's looking like this is a confident so lo smuggler but i would as i said with the p s r it does say that he was likely hired by a known drug traffickers so that is some evidence of other participants and again with the guidelines commentary saying that if you are not you don't have a proprietary interest in the drugs and are being paid to perform a certain task that is you should be considered for and i would ask the court to let the district court decide i don't remember the exception to responsibility argument you're making now a lot of the mule cases where it's others there's a conspiracy charge i admit there's a the government didn't object to the paragraph that describes other people involved so presumably that's a fact in the record and on the other end he still has the burden to show lesser compared to them and what makes me think he's not just a mule is that his own car and he was he had he got the drugs two weeks before he crosses that right to he's got the car two weeks before i don't think it's clear when exactly he got the drugs i just think that's not those facts are developed in the record but he did get the car two weeks before i mean a lot of that to your meal cases they don't even know the drugs are in there it's not their car they sort of see someone gave me a car and i was foolish enough to accept it oh my gosh here the guy admits he knows it it's a lot it's in his own car there's no one that we know he's going to right i would agree with you on it but the facts in this case are not as strong as they have been in other cases but i would still say that if you've got a show clear or x in this we think the arrest issue creates a legal problem right and i do think the arrest issue does create a legal problem because under the guidelines  denying mitigating role should be based on the defendant's participation in the office and which includes the often said conviction and relevant conduct and as i was explaining earlier the p s r doesn't include the arrest as relevant which you don't provide any details about them i think that in my opening brief i didn't discuss specifically that be arguments i was making the facts i was presenting were from the statement of acceptance of responsibilit clarifying that there is evidence in the record and that was where it was coming from it was more than just counsel's argument open if we could have a little more clear statement rather than having to jump back and forth on that issue it's i don't you know a letter acceptance responsibility is that's fine it's a little bit unusual for me it may not be up in a long way for a long time yes it is signed by mr to use signed by yes and it says that even of the defendant correct and it says that he's reviewed the statement and everything in it is true and correct as far as the p s r's decision that the arrests are not relevant conduct that doesn't make sense under this court's case law prior arrests there are too remote or insufficiently similar to the office of conviction should not count as relevant conduct and since the may two thousand a rest was nearly sixteen years old that is clearly too remote to stick to relevant conduct this court said in miller and wall that four years old would be too remote to count as relevant conduct and although the november two thousand and fifteen arrest was closer in time there isn't anything in the record to establish sufficient similarities when the they were a thousand miles apart and involved different circumstances of a traffic stop for speeding versus crossing the bridge one involving currency the other involving meth one involving a mercedes benz and the other involving a pickup truck yes there is that one similarity but considering the lack of any other evidence about the common source or supplier of destination i don't think that's enough for the court to find it was relevant conduct and i would say that from the record it appears that the  a rest was even more important to the district court than the november two thousand and fifteen arrest so if the court if this court were to find that only the may two thousand arrest was inappropriate to rely on i still think that would be sufficient to find an error the court mentioned the bridge case four times and the nov two thousand and fifteen arrest twice and the court talk specifically about how the bridge case was like what he was doing in this case as aryans used to mark a store disfavoring discussion of arrests was when no one agrees to the facts at all but here once the different sort of says yeah i'm the one who was arrested in yes i just want to be sentenced equally it sounds like that sort of validates those rest mr chavez did admit that he had been arrested he had been arrested but he did deny knowledge of the marijuana and knowledge of the currency and under this court's case law in harris and also particularly in windless there are two requirements for an arrest record to not be bare one is that the there has to be a factual recitation of the defendant's conduct and second that factual recitation has to hide sufficiently reliable evidence of guilt so as far as the may two thousand arrest i think that's fair under both requirements the november two thousand and fifteen arrest is not fair knowledge which is what would make the conduct criminal and especially with the may two thousand arrest the court the further information the p s r actually tends to negate that it provides sufficiently reliable evidence of guilt because the p s r says that federal charges were not pursued because mr chavez denied knowledge of the marijuana and state charges were also not pursued and now all records have been purged so especially with respect to the may two thousand a rest there isn't much more i don't think that mr c when the records have been purged and charges were not pursued because he didn't know about the marijuana and as far as the november two thousand and fifteen arrest it is not a legal in california to have one hundred thousand dollars unless you know it's from drug proceeds to have some united states he was driving the vehicle and he was the only person in the vehicle in his acceptance letter which to the best of my knowledge is a bit outside of the ordinary he added that he knew th contained drugs he did not know the type of quantity of the drugs he was going to be paid after the drugs were brought in and he was not the owner of the drugs and no one forced him to bring the drugs in against that backdrop the judge crane was faced with a young man who had a prior misdemeanor conviction for possession of drug paraphernalia criminal theft conviction a disorderly person conviction which had originally been pled as to felony possession of drug charges as well as arrests for possession of a concealed weapon conspiracy to commit robbery assault with a deadly weapon possession of drug paraphernalia property precisely as judge barksdale in charge against and does noted the single most in the closest was the november twenty fifth teen arrest chavez buys the honda ridgeline for cash eight thousand eight hundred ninety five dollars in the p s r less than two weeks after that he's arrested crossing the bridge with forty two point eight six gross kilograms and forty guideline in this case the district court was eminently justified in concluding that chavez was absolutely not inexperienced in the area of drug trafficking at the sentencing hearing his defense counsel began to say he had made a mistake a fairly common argument in your or in real cases he made a terrible mistake and he regretted that judge crane cut him off and said basically this is by far not his first in the state he is well experienced sixteen years ago he crossed the border in california with thirteen kilograms of cocaine less than four months ago he was arrested in california with two hundred fifteen thousand dollars wrapped in can repped in a manner and concealed in a motor vehicle highly consistent with transporting drug proceeds and yes it is a good argument but  it seems to be to go to offense verity and criminal history in the sort of art maybe artificiality of the issue before us is we're being asked is any of what you said relevant to denying a room minor wro reduction if that rule reduction the guidelines clarify has to relate to the offense of conviction as to the i guess you say crane says you're not this is no mistake you've been doing this to me that sounds fair but if he then also says and by the way since you had a history with drugs you couldn't have been a minor participant in this offense i think that the law wouldn't allow right well if i could put a slightly different analysis on that in cases where the defendant contests guilty knowledge there are at least a dozen published opinions that say the jury is entitled to infer guilty knowledge from the quantity and value of the drugs in this laufer that way back twenty years ago fancy the fact that he's got a really bad history you describe in the stuff was really pure is irrelevant to that sentencing decision but i respectfully submit your honor that that the purity in the quantity is not irrelevant it shows that he clearly has prior knowledge in drug trafficking in this particular case he had the burden to show that he was substantially less culpable than  other participants in this case in this case so yes what's the government's position on that are you saying there is no proof anywhere there were other produce and or do except that the p s r in the letter of responsibility sufficiently say there were others it's just there wasn't enough evidence shown by him to meet the preponderance that he was less involved which was the government's argument here the premier of the initial argument is that there is no  anyone else involved the burden is not on us to prove the reduction the burden is on chavez to prove the reduction the only the only that's preference judge barksdale police more articulate than i am the only proof is the single statement in his acceptance letter i was to be paid after the drugs were in there is no indication anywhere in their narrative and they said likely there were others in the government did to strike it so but they prefaced it with likely there were others in reality there probably were others there almost always others in a drug case particularly a case involving this much pure crystal meth so if there are others then you balanced he purchased the motor vehicle two weeks before the crossing for eighty eight hundred dollars although the p s r shows that he's had essentially no gainful employment in the last several years either the compartment was in the car or he had the car the compartment add the car and then he's caught at the bridge with at least a million dollars worth of crystal meth if not more based on my extra two point nine five to eleven point eight million no one would trust that to someone who is not experienced so even if you had even if he had asked for an analysis of the factors and melton which he did not and therefore judge cra was not obligated to provide even if you had asked for an analysis of the melton factors he clearly had some knowledge of the scope of the operations since that's not of use quantity and it's not something that a drug traffick acceptance letter border on the absolute minimum sufficient to fund guilt i drove drugs across the border i knew they were there no one made me do it i was going to be paid precisely as you said judge you can see how many how many border crossing cases have there been in the last twenty five years people always offer who hired me where they hired me where i'm going how much i'm supposed to get paid nothing not a single detail nothing i knew there were drugs in the car nobody made me drive across the bridge understandably so because you started out at a base office of the thirty eight you wouldn't want to add to that with obstruction seventy four to three b one point two as to the bear arrest he admitted both arrests at the sentencing hearing pages i believe it's one seventy eight seventy nine of  he argues that he did not commit the underlying crime for the obvious reason that the money the money movement case in california for lack of a better term is still pending prosecution obviously the two thousand case will not be prosecuted i would respectfully submit that the probation officer statement that it was declined because he did not that mitt culpability was perhaps hyperbole i suspect it was probably di wood's respectfully submit that it was probably declined because the u s attorney's office had a cough threshold for drug cases and it was substantially higher than thirteen kilos they wouldn't invariably have let the state he was sufficiently concerned about the two hundred fifteen thousand dollars in the mercedes bins that his attorney requested judge crane run the sentence in this case concurrent with whatever happened in california the trial court prosecutor resisted that effort and said we don't know what's going to happen in california this case should stand on its own and i submit that it did both as to the sentencing in the denial of  all three is literally overwhelming drugs in a compartment cash in the compartment drugs in a compartment and both the cash and the methamphetamine were in the conceal compartment in the rear of the car me please the court i'd like to begin by clarifying something the standard of review this court's case law stablish is that it is clear if a district court's factual findings rest on an error of law and i would submit that the court in this case did make an error of law by relying on unrelated conduct and also the court's review of whether a district court denies a mitigating role for clear error supports reminding in this case since this court would be deferential to what the district court would do i would urge the curt court to let the district court decide in the first instance without its legal error whether a mitigating role is appropriate as far as mr chavez admitting to the fact of being arrested this court has said in many cases that the reason that it violates due process to a lot rely on a rest is because arrests are consistent with innocence and as far as the government talking about what might have happened in the may two thousand case that is actually just speculation the p s r says and the government did not object in the district court that the federal charges were not pursued based on mr chavez's denial of knowledge of the marijuana and as far as the p s are saying that there are likely that he was likely hired by drug traffickers to smuggle the methamphetamine the standard is a preponderance of the evidence so i think likely makes sense to use in this case and would be sufficient and as far as the question about needing to offer rebuttal evidence i would direct the court's attention to the hearns decision in that case the court said that there is no need to offer rebuttal evidence if the factual recitation is in sufficiently reliable evidence of guilt and in that case it was a mortgage fraud conspiracy case and there were a number of details in the p s r about different properties in the value of those properties in the transactions that had taken place and the court said that even though the defendant had not offered rebuttal evidence it was still error for the court to rely on those facts in the p s r because there was not information in the p s r about whether those transactions were connected to criminal activity  lebanon well with the first argument about the error of relying on unrelated conduct i wouldn't say that rebuttal evidence has anything to do with that but as far as the second error of relying on bear arrest records and rebuttal evidence so i wanted to clarify that standard from the hearns case for the court and as far as the there are other cases by this court where the court has found that arrest records are sufficient for example in the harris case there the arrest report said that the officer had actually witnessed the assault and that the victims declined to prosecute so that's a good example of when an arrest record has sufficiently reliable evidence of guilt there are also other cases from the government's brief defendant had been arrested eleven times by ice agents and that was corroborated by the fact that the defendant had then been deported seven times so in some of those cases we have good examples of when there's enough for there to be sufficiently reliable of evidence sufficiently reliable evidence of guilt that corroborates the conduct underlying the rest and that's what is missing from this case and there