one hundred united states of america versus about that we're common knowledge or things that call forth was aware of i think both of those expressions are really expressions that are more applicable to the issue of course the ability broader than his any specific agreement that he might have made and over twenty five years ago and you know why they burst xero this court made it clear that foresee ability was not enough in determining responsibility but after a general guilty verdict on conspiracy and so we have well counsel i mean you know better than i your client made certain admissions about what role was all about and it certainly had to do with this drug  trade your honor to be precise i don't think that he made those kinds of admissions why was he keeping the routes open why was he you know trying to disrupt competition i mean you can't just ignore what your client said and run trafficking was only one and so after the supreme court henderson the decision what determined to be plying is what's playing at the time of the appeal or he's he's an appealing now and the law on this earth is that those  for that and we couldn't charge him with that because it was didn't have extraterritorial reach we would have charged him with one thousand one hundred and sixteen and under the sentencing guidelines she would have gotten exactly the same score as he got under depends on what you decide the correct sentencing guidelines are the rate of it at the end because if you agree with the precise report to that the sentencing guidelines for the other two convictions no i did not make that specific point our original  good morning may it please the court this is incurred on behalf of the united states if that unless the court asks otherwise i'd like to proceed with the issue of drug quantity and i would like to st talk about the defendant's objections to that number one he claims that he's being responsible for the drugs attributable to the entire cartel that is not correct number two he said he had no role in transporting drugs that also is not correct number three he claims that he had nothing to do with zetas cartel transported and the word is multi time quantities of cocaine every single month the united states now when the court half of the time in the pre sentence report which the court adopted the court stated that the minimum level that he was responsible for what is one time i'm basing adopted the present and report it was really adopting the notion that it was one time that they were responsible for i didn't realize until reviewing for the route that  report writer did not times that by the fifteen months that the defendant participated in part so he is not being held responsible for multi multi times of cocaine he is only being held responsible for nine hundred and seven kilograms which is one time which is well above level thirty the amount required for level thirty eight dollars secondly appellant argues guidelines require review to begin with what is the offense level of clickable to the offense of a conviction that is at least a level thirty and then in terms of his own involvement there as judge rogers indicated there are numerous numerous circumstances set for in the statement of facts stating that his role was to protect the cartels drug smuggling routes into the united states that was his purpose in getting hired by the los zetas hotel cartel that included in the  appendix at page forty five protecting the drug smuggling roads in sand the waste potosi state as well as others and he specifically acknowledged that san luis potosi state had lucrative drug trafficking routes into the united states he acknowledged numerous times that his role was to eliminate competition for land drug routes he stated that when he started working for the cartel he gather information on rival cartels competing for the drug routes that would be in the state where he worked then he worked his way up to be a commander and at that time he still his role was still to protect the lucrative highways in st louis potosi for those drug trafficking routes with and we have cited to the to the responsible for the amount of drugs that the other person had in gauged it but at the same time the court recognized that in some conspiracy chip and it has joined in the overall scheme so scope is identical for each and that is the type of conspiracy that we have here this man's role was to protect the routes for the entire drug cartel that was going through st louis  a lesser a no further questions about drug quantity i would like to train my attention to judge kraus questioned about the st issue and how many has ignored the fact that his situation in other words the direct appeal was filed when  o'connor talking about what a defendant is obligated to raise where there is no definitive decision on the issue but it's percolat available to him and as the court knows in blue slate the court discussed that were those types of arguments are circulating that it's not an excuse that you didn't bring it here in the direct appeal it was definitely available to him and as a matter of fact he made a guidelines argument that was very similar and he said he made a guidelines argument that he was responsible for the conduct that occurred in mexico and as you know it's relevant conduct my other point though that i wanted to bring out in terms of the plain error claim and we believe this claim is absolutely weight relies on this court's decision in sunny and a quote there where they're talking about the plane or a doctrine applying but he misread signy that quote from s of the court there is talking about the fact that the defendant did not raise a claim about the recent tensing and so yes that would be plainer but if you look at the sentence immediately before that the court in sunny addresses the defendant attempt to raise a claim about his sentence that should have been raised in the purse to peel and the court inside any applies rice which in turn applies henry but says it must be raised but it's forbidden it's waived if it's not raised in the direct appeal and of course that could i just be clear on what the government's position is in other words if an issue about the extraterritorial application of various us code provisions is circulated even though the supreme court has said that coun so it's not as though i'm just trying to understand it is the failure to say and i raise everything else that may be percolating out there deemed to be a waiver by the government as opposed so can you just take my question as i gave it to you because the critical point to me not what other jurisdictions are doing but what the government in this case is arguing he was required to do in order to avoid this waiver argument which is a slightly new concept of waiver after a latino and even after jackson vs so i'm just interested in no your honor i we firmly believe that he waived it the argument was definitely available to him at the time with the direct appeal there were contrary decisions in other jurisdictions but not i think i also think makes it very clear that it was it was his obligation to raise it at the time of the direct appeal moreover though what what what's also involved in that is this with a guilty  loosely makes plain in order to you know the arguments that the courts talking about may be pertinent to a direct appeal in an appeal after conviction but not for a guilty plea a whole other set of concerns come in with a guilt available to counsel in the airport has to be brought in hideous action in the district court i'm so i have what you have and what you just said just now do you think it's your way for argument based in part on the fact that those arguments are and also that he pled guilty so is your is your contention also that the guilty plea waived these claims in some way your honor i have to be frank when i st looked at this particular issue the  st thing that popped into my mind was the waiver argument because it had not been raised in the direct appeal as we were preparing for this argument and was working on my moods last week i discussed it with my colleagues and unfortunately we i think it's a slightly different way her argument that we need in our brief and to be pranked with you we did not think that it was an appropriate issue to raise in a rule twenty eight precedence in the fact that these types of arguments are very common in the jurisprudence that that a particular u s statute doesn't govern extraterritorial it so there would have been it's clear where this needs to be brought is in the hague is kind to you my question was different i wasn't talking about a specific provision of the u s code i was talking about i the government's argument that you have to raise any of these u s code provisions that might apply to me for conduct taking place outside the territorial wine wine for plane that he's making now that that had to be raised in the direct appeal that specifically because because that type of claim was definitely a very little to him at the time of the direct counts could you get out of the one thousand one hundred and sixteen just one right right that's right and so and so he's been convicted of two felony or he'd like guilty to two other felonies to replace it with only one felony runs into a problem and the problem is the one hundred hour assessment i'm not sure you honor what you are each felony cal the law requires that the defendant be assessed one hundred dollars so there so you can say well there's no consequence here because the nd swing the imprisonment nd c s would be the same but the the one hundred dollars assessment would not while you were under i think the point you raised these are the types of issues that should be raised in the district court in the st instance and i would point out that we also that use of the firearm during a drug trafficking crime we also forwent that he was charged with that in the initial indictment and that is that we believe sentence would have to be consecutive even so i think that that and of course he has to show that he's not guilty of all more serious charges and of course he's not you can't make that with respect to the rico conspiracy either so i don't think he he can't meet the burden that this court discussed in casso and baxter i'm showing he's not guilty of either or equally serious charges or greater charges and that's our position has more than our brief ok good ok thank you thank you or are there further questions regarding be other enhanced ments that the court may have otherwise we would submit on really set out the responsibilities of the district court and arguably those of the prosecutor as to being able to make this the big finding as to the is not that the case didn't necessarily exist but that the government had no opportunity to respond concluded that the requirement to prove innocence all the other more serious charges was it was either a matter of