government's plea agreement i believe that this court reviews a breach of plea agreement and quote next questions of law in fact in novo i am asking that the court apply the undisputed material facts established in this case and clear  undisputed that fitch received illegal drugs from brian over that entire period of time and there was no difference in the modus operandi there was no difference in the type of drugs or no difference in the charges that were being made and the think can be answered this way july twenty third two thousand and three they caught up with him the investigation that resulted in his arrest was a joint investigation from the central montana task force the c i v and the h d eighty k whatever it was d agent her heard from billings was last on for all of those they developed barker information in billings in january in february of two thousand three which was presented to the missouri grand jury then re presented to the billings grand jury the overlap is the conduct and the overlap is the issue that when brian pled guilty in october of two thousand three he knew about the billings transactions he knew the government knew and the government agreed that if he pled guilty up in missoula he wouldn't get charged with the rest of that now in the record that shows that the examined bryan about transactions drug transactions and billings and he did it and several places bryant testified that he regarding these ongoing transactions judge malloy when he departed when he sentence of the high end of the guidelines up there did so in spite of the plea agreement that the government representatives alone and he did so because he took cognisant of bribes testimony and the and the other testimony about this extensive course here's what we have for the pitch transactions we have a connection by of another informant and another individual involved with bitch fetch by the name of tash carter and those transactions between pitch and carter occur initially in february of zero three there are two of them and and it's tracked down through a series of other transactions of individuals including the smith person who was involved with carter in pitch who is the one that brian is with in billings when they identify him as being a the supplier for snap and the exhibit that references that chronology is the stipulation for the admission of the western region lab results for all of the stuff that was seized all the way through until with ron's arrest july twenty third in butte and it included also the stipulated information on fi more drug transactions because you will be subject to a lifetime unhandsome and and bryant didn't do any more drug transactions he would have been incarcerated continuously since july twenty third so if we look context of the sensorium is that we had every reason to believe that when we made the deal it was over i mean they had the information all of the investigations were completed all of the investigations involve same conduct same people and i have to indicate that amanda brothers the quality third in this case was accused of being a coconspirator as was a pitch as was tess fluff in missoula brian didn't the double jeopardy and i'm not going to take up any more time arguing that issue of the section eight forty one hands and handsome and because there were no additional new conduct nor am i going to argue lopez because i don't think the panel needs to get to that point one that has a note three twenty one sealed by the court because the number and name are missing in the heading of this document and that's the one that we say is  the document that you have shown me is the one that i have that shows that was filed on three twenty one three twenty nine but it doesn't have its filing at showing a march seventeenth for i like and assume is that the mar to accommodate mr van the veterans failed e mail or electronic filing effort and to that extent there may have been an accommodation but that jay has your question directly no we don't back that stuff please the court trial with maurice representing amanda brothers from billings montana there were two issues that were presented in regard to amanda sentencing in this particular case the first being that we didn't think she should have been reflection i talk about the second issue is i think that probably has a little bit more merit if i'm wrong i'm hoping that the three of you will advise me otherwise i think the district of montana also had the distinction of being the last district to come on problem she made and it's something that seems to happen with love and women numerous times is she trying to take the fall for a guy that had a very severe significant criminal record and someone who was young enough to be his daughter and those statements stuck with her no matter how incredible they were and no matter how much law enforcement essentially i didn't follow those and discounted those in our particular circumstance we think the district court got it wrong two particular ways on the minimal or minor player a circumstance one is under that particular guideline i think three b one point two the court was required to  look at all of the possible players within the cases involving a brian barker and amanda brothers to assess her role and instead the court said well i'm going to look at the average  participant here and make a finding based upon that and i don't find her involvement to be any less than an average participant if that's the exact language in their guidelines it is  three it is your honor except that this court has indicated i think it a real hostile lawyer or if they've got that right that that the language that we're supposed to be focusing on in the review that the court are supposed to be focusing on is how everybody involved in the transaction that's before the court whether they're named or not and was her involvement in all of the people that are before the reviewing that i don't think right at sentencing that that judge steeples language triggered necessarily that the stake right at the time mostly i was so frustrated your honor that her making two or three fellow telephone calls that mr parker had already done and then purchasing the bus ticket with money that brian barker had given her i couldn't fathom how that would not make some minimal or a no your honor i don't think so because i made an objection to the pre sentence report and filed in my sentencing memorandum that she should receive a reduction for being a minor or  minimal player in the case of so it would appear to me that that i've made the record that i need to do there and then set forth i think in my sentencing memorandum the proper standard to get back to the court's question though and and as i was looking at this yesterday i think in the valdez case it talks about a potentially different standard for a four point reduction being a minimal player and maybe a slightly different standard other than the four level departure we would look at the scope of everybody that's before the court when i first looked at it go geez there's two levels here of analysis and then the more i thought about it no they're just trying to say the same thing i regard to a review of the sentencing is was the guideline calculation done correctly in the first place and what i have to say here is it's wrong in two counts one the court used the wrong standard in two is just plain wrong on  have to rely on is the trial testimony that took place with mr barker because that's all done under oath and is probably the most reliable information is at barker's bequest she made  two to three telephone calls to she loved pick trying to assist in the transfer of the ten to sixteen thousand dollars from billings to beat then and while she's in butte montana  parker's request she goes down to the bus station and buys the bus ticket and sets up the code word raymond that's the extent that i've been able to tell your honor of her involvement i think the trial transcript of the parker trial all part of the statement that she first gave when she took the fall and then you know started stepping back from that long before she was ever charged in federal court what she was your honor is she had a state court conviction out of great falls for a possession of a i'm trying i'm losing a word here a very small amount of methamphetamine a trace amount of methamphetamine and that was the state court underlying conviction that she'd been around dealing with drugs from anybody else i've never seen that appear anywhere in a record except in that early stage when she was trying to take the fall for brian barker which made no sense to me  try because it was certainly my error that there was no caption on i have learned one thing about the c f is that it files what you give it and it doesn't tell you you've made that mistake until the clerk calls you later and i think that's what happened here  person council and it's in our piece the record and you also are not aware of this is that correct i'm not aware of it with that kind of date on and i know we went back and refiled and researched but when you time you know mr stevens says that they didn't get it and i cannot tell you your honor that i honestly did it was me doing it and i was in a hurry before trial i knew that i had filed eight fifty one months earlier before the mistrial and i was trying to cover my bases in retrospect maybe i should have just left well enough alone although if i had done correctly that would have been a better way to go but i can't say to you for sure that i sterve that one right before  mind those are separate operations or as mr stevens says there are no conspiracies he simply has customers and he deals with them separately i alleged that those were conspiracies those dealing with those different  customers and of course we cleared one of those away or negotiated one of those away and lost want to trial so perhaps mr stevens is right there are not are not separate conspiracies they are separate dealers the point of course is that they are separate honor and i think the fact that i cross examined mr barker at the first sentence scene and let me back up a little bit everybody knew it was out there in the general sense i was not the prosecutor personally who charged the billings case in the first place that was a colleague of mine who later retired and then the case was handed over to me some time after that charge so at the time of barker's masooma case which i was responsible for from the beginning i was aware that there was ongoing crimes for isn't his perspective important to you his perspective isn't corn your honor but i don't think it's reasonable under the terms of the pleat remit and merely the fact that when mr barker brought the issue up for mr stevens i guess at the first sentencing trying to trying to sort of cram the billings stuff into the missoula conviction i cross examined and essentially opposed that idea he never presented that argument at the time but i think the fact that my cross examination at that time certainly should have suggested to mr barker that the government was not agreeing with his assertion at that time that he was out of this idea and i think the language of what was the point of putting billings then the the point of putting billions hen and certainly something i regret now i knew mr barker was from billings and you know that was the connection in my mind was that i know i knew that he lived in students we knew that there was a village case out there are there was always our position as it is today that they were separate cases separate conspiracy separate separate crimes which i think conspiracy i think that would fail because we would have essentially the hub and spoke but unable to connect those folks because they didn't have anything to do with each other and for that reason we charged it as separate conspiracy we did not say that to him at all although i think it was understood that we would be doing it and i would suggest it's your honour's understood from the plain language of the please remember that that prohibits only further prosecutions first indictment first indictment it is focused on rate tesla and brian barker and his activities with that group including lloyd cleveland who i think was in the p s r and gave information about weight and their indictment comes down in may two thousand and three and some of the activities hadn't happened yet the big package interception happened in june two thousand they thought they were going to bring the money because they thought that the june delivery that was intercepted was in the go sheeted only a matter of days or weeks before it was actually sent but of course the district court found with respect to that case that there was no conspiracy at all it just distinct charges of delivery which i think as a result of that enhances the government's argument here that it's separate activities that if that mr barker recognizes that too and i think his testimony saying at reasonable for mr stevens to suggest that it is reasonable for mr barker to believe that it's all wrapped up i think we all knew that it was not all wrapped up and that's why mr stevens attacked that point he tried to lay the groundwork for something that wasn't there and perhaps we should have simply come to the united states and said let's negotiate the other stuff too because i'm worried about he was clearly worried about it we were clearly not agreeing with him that it was all wrapped up  and because of that difference i think he's got no argument on the plea agreement certainly no argument on the double jeopardy sentencing i don't think you can say that there was fair and in judge siegel's concluding that she's an average participant he looked at the other people who are participating some of whom are dealing with drug amounts much lower than the amount that his brothers was dealing with she was dealing in a lesser way certainly less of them brian barker was and course he was the leader but with much higher drug of house her involvement in making phone calls and i would suggest also and i'm sorry i don't have this in the excerpts of record but i believe it is in the p s are the ms brothers was able to say to the agents what the packaging material was on the intercepted package of course she was not there when it was received and i think that indicates that she at the very least have knowledge of what was in it when it was sent and and that suggests that she has given a variety of statements but that certainly suggests she was in on the sandy in making phone calls to collect money by by referring to the use of average and by referring to her as average i think what he meant was that he had seen the other people like tashi carter like sheila pitch the people down the line from see the pitch and considered ms barker to be average in comparison to