raised that that is in regard to the district court's calculation of the base of fans level based on its weight determination the difference in offense level was from a level thirty which the district court calculated to a level twenty eight dollars which we were asking for which was based on our position that the drug weight in this case was less than five sentencing and the government maintains that it prove that up basically what this comes down to isn't necessarily a residue or anything that might constitute that extra ten grams we're talking about ten you know ten gram difference and five thousand grams here but as a district court found it was rd on recovered package which put the which put the weight over the the statute or the guideline threshold and our position is that because that package was unrecovered and obviously and that courts have to be cautious that they can't speculate as to what what the weight would be and are saying it's to count as zero here though are we are  we're mean that's a little different than a conservative estimate in some of these cases are saying you know if it's a range and you haven't covered it you've got to take the low end and that kind of thing well i would this one count for zero in our were recovered by law enforcement but there are actual reasons as to why that package could have not contained cocaine even though it was similar in nature to the other recover packages for instance drug traffickers who are trafficking and this particular method can and often do send dummy packages or test packages to make sure that  package is able to get from one point to another and this package was in a series of packages where we actually don't know whether there might have been even another package that was delivered before the st back so it would make sense for an organization to send dummy packages or test packages to make sure that their routes were still being affected or affective without actually putting skin in the game essentially by putting drugs in the package so i think that in this particular case the court's determination does amount to minimus as far as the whole fact that it had on the defendant's guideline calculation and in the courts in the court's ruling on this role adjustment the court stated that gives men was unquestionably the supervisor of miss williams who was another coconspirator and he specifically found that miss williams didn't have the sophistication contacts or ability this but our position is that the record would would certainly suggest to the contrary what do you have to p s are statements which i understand we can consider that say he told her where to pick up the package where to meet him where to go and what to do know you're on it said the p s r in plain english i understand and we specifically objected to the factual basis that was contained in the p s r because we determined that the factual basis that should be should be considered by the court was that at the trial you objected those specific paragraphs we have objected to the factual basis that the that probation relied upon i don't recall objecting to those specific paragraphs but isn't that the proper way to do it if you want to make sure the court doesn't consider the well it could be but in this case we're asking for the court who is sitting in judgment of the trial to take the factual basis that was given at trial as opposed to the backfill basis that probation came up with as the fact not that's still the law and if you don't object to the paragraphs and they can be accepted as true ok for so let's say for argument's sake that those were taken asher well even if they they were taken as true that's one of the factors that the court has to consider as indicated by davis which which cites the comments of the rule so if you look at the tally of the evidence whether it's the factual basis that's contained in the p s r or whether it's trial evidence miss williams is at least an equal participant in this case should never go to mexico right she did not then that a big difference i don't think that it is because all of the conspiracy activity occurred after the trip to mexico and when mr guzman went down to mexico with mr gomez he was not with mr gomez down in mexico they were in contact but must be it must be noted that these two are our nephew and uncle and that both were visiting family down there in different regions and that their contact was never establ trial or in the p s r version of the facts that the contact that mr newsmen a mr gomez had in mexico was related to anything regarding drug trafficking so i would say the fact  that mr guzman was down in mexico when mr goes when mr gomes went down there i don't think that that's really actually that in court because mr grossman didn't do anything to assist mr  establishing drug tracking drug trafficking channels the bulk of the activity occurred through the mail and in the quad cities once the packages were received there and miss williams played a critical role in that she asked other individuals who were not members of the conspiracy to use their addresses such as m and she was the one that was calling u p s facility about the package she was the one that picked up the package and drug it to the mall she said she was the one that admitted to picking up another package and the government did not present any evidence that mr guzman was controlling any of these events or the one package she picked up she almost immediately gave it to him though right guzman tell me if i have my facts right that is correct ok that that's the way that looks more like an inferior superior relationship when you get it you need to leave it to somebody else well i think that i think that that could beat true i mean one could look at that way but i think that if you looked at it in the total context she's actually doing more by picking up other packages and i mean somebody somebody in this this chain has to has to to pick up the packages but and i and our position is that both williams and newsman were were part of the distribution chain and that they were at least equal members if not miss williams being more culpable i mean as far as her metaphorical fingerprints on these packages there's more fingerprints there from miss williams in this conspiracy then place the court my name is andrea glass going to represent the united states of america i too will start with the quantity issue to address some of the court's questions st i think what's been bit overlooked here is that the court can take into account why you want to focus on that then if there's no finding on it how could we affirm on that basis well there's evidence in the record to support the district court assertion that there were five kilograms involved in this conspiracy that's one area where quantity can be found there was a rd package that wasn't recovered by law enforcement which was not just similar but went to an address that had been provided by mr goodman to mr gomez and then mr gomes to carlitos in mexico that is the same fashion that the st two package addresses were provided to those two packages containing two thousand nine hundred and ninety or excuse me grams of cocaine and then two thousand grams of cocaine that package was picked up from fed ex the day after th the name ashley johnston mr williams then tried to communicate with mr guzman in jail using male she had signed a johnson an individual named ashley johnson was never identified associated with that address or in the community associated with these individuals so there were substantial evidence upon which the district court could rely in determining that that package was associated with this conspiracy additionally that package i'm sorry correct what she had indicated she did in fact pick up a fed ex package and then that we believe that also corroborates that that is true given the age johnson monitor and even say a fed ex package of x she didn't miss drugs or job or on and it seems like you're asking us to make appellate factual findings if we were rely on those other quantities as opposed to the rd package which is what the judge did roy well your honor the standard what was entirely reasonable but the district court also had before other information from which it could take and could find ten grams at some point record finder didn't do it i guess i'm sorry i'm not sure of the  fashion and construction and stare of what was a stay here or does it mean well it was in the shape of of stuff well like what you might think of as an aerobics stair it was fashioned in that type of fashion it was boarded up and they had used fiberglass to board up and paste it shot with different compartments within that step turns to look like a legitimate product right well i know i think everyone who  only construct but going yes i think everyone who testified said that if you had opened the package was very clear that this was not a fiberglass were a robot stair it was fairly obvious from its construction but i think the idea was that as was testified  day before these addresses get sent to mexico during the time that they're in mexico mr guzman and mr gomez are exchanging communication and at one point mr gomez text mr goodman the appellant and says are you coming these guys been waiting so it's very clear from the evidence at trial that these two were in communication and were meeting throughout the time that they were in mexico then one day upon their return mr guzman is communicating with mr williams and relates to mr gomes the addresses which he interned sends to carlitos in mexico within days that st packages sent to addresses that had been relayed and as has been pointed out ms williams stated on several occasions that mr goes men directed her to pick up the package that she was doing him a favor and that corroborate d by the fact that she picks him up a package out of you p s and meet him at a mosque which is minutes from the u p s location there's simply no logical practical reason for ms williams to pick up that package other than for one it had been shipped in a false name and someone need to present identification and to mr goodman was trying to distance himself from the package because of its content which also goes to his argument of the sufficiency of it no evidence and understanding his role and the knowledge of the contents of the package  overlap and kind of play into each other the evidence here because the fact of the mexico trip the fact of directedness williams the fact of collecting various addresses that these packages are going to go to that all indicates mr guzman's knowledge of what was in the package and supports the if there are no additional questions i can see my time very well thank you for your  streaming you have some time remaining for a bottle if you like i think your honor i would just like to quote the passage from the pot which is the th circuit case that deals with speculation as to drug quantity although sentencing may be based on fair accurate and conservative estimates of the quantity of drugs attributable to a defendant sentencing cannot be based on calculations of drug quantities that are merely speculative and i think that in the court's questioning of the government i think that your honour's have been hitting on the point that we're trying to make which is that the district court was firmly convinced that the rd package contained cocaine when there just wasn't any evidence of that and i don't know what else you could call the district courts terminations other than speculation you could call it inference from circumstantial evidence you could what about that  option i mean you could call it an inference from circumstantial evidence but it doesn't differ in kind from speculation at the court is guessing  making you know i guess based on based on the other circumstances of the case what's in the package and i guess that you could characterize that as a reasonable  but we would characterize that as speculation well maybe that's what it comes down to whether there's enough evidence there to make it a reasonable inference versus speculative and i and what the jury finding is not really totally relevant that the twelve people that were sitting in that box all week listening to the evidence weren't willing to go as far as the district court was they clearly determined that there wasn't down to twenty eight if a row is actually more significant a role is a much much more impactful guideline that's a five level difference so with that thank you very much and we would ask that you r very well thank you very argument case submitted thank you to both counsel the court found opinion in due course