pertinent to the role of adjustment as a result of the defendant's counsel silence at the probation interview because the district court penalized mr d s for exercising a constitutional right as well as other grave errors in the sorry when we're looking at what the district court did here is there any indication that the district court thought the guidelines were mandatory  guys ok so did the district court get the guidelines wrong it got its guidelines analysis wrong yes well ok but it did say somewhere well i know i have to i have to consider the guidelines i have to consider thirty five fifty three a right yes and so it you think that the district court the magic words would have been i start with the guidelines they're not mandatory and do that and that i think that's one of the structural errors in this is that the court i think the overall arc overarching problem of this was that the court was very discounting of the role guideline particularly the effect of amendment seven ninety four and quinn tearaway of of the court simply downgraded the guideline analysis in many ways by saying the guideline itself was unworkable that it was inherently inconsistent and there and in fact shared with everybody is general practice is to do the thirty five fifty three a analysis first that is come up with a sentence and then do the guidelines but only do the guidelines to the extent that it confirmed what he'd already decided was the appropriate know he has to consider the guidelines there's no two ways about that from this record well he's considering the headlines to the extent that he's using it to confirm what he's already decided which is what this court said in levy a court can't do the court can't shape the guidelines to fit a preconceived sentence here the court came in from the very first words out of its mouth where this doesn't change one thing one tiny little bit quinn tera leyva the amendment seven ninety four being retroactive nothing changes one little bit and he was right about that he came in already determined that i'm just going to give the same sentence as before well ok but he didn't he didn't only because of the pepper evidence that's correct but he gave the same guidelines sentence because his analysis as he said didn't change one little bit and five did he use the guideline as the quote initial benchmark in this proceeding no my argument is he didn't ok and here's my sense i'm looking at c of the three b one point two fact based determination did he make a finding as to the degree to which the defendant understood the scope and structure of criminal activity  he make a finding as to the degree to which the defendant participated in the planning organizing of the criminal activity you know and did he make a finding as to the degree to which the defendant exercised decision making authority or influence the exercise of decision making authority he did but it was completely on acceptable he said he had decision making authority because he decided to join the conspiracy ok i went back and read the pre sentence this fellow was involved this defendant was involved in drug running for six five or six weeks his three trips as three trips started in january i think it was a apprehended in january he made the deal according to the persons with jose to be the drug runner in december he made three trips to do i have the facts right three total yes ok and my sense is that the judge didn't since there were no other persons named other than jose the judge didn't make a finding as to where he fit in with the quote drug conspiracy in my right that's correct your honor as a kept arguing at the time of the sentencing i laid it out on its page eighty eight  yes i'm understanding your argument does your client have the burden to show he played a minor role yes because ok so if someone chooses not to answer and provide any information about that folky in the i'm taking it to say the you want to say if you invoke the fifth that therefore somehow that shifts the burden the court still stuck with it whatever it has no i don't mean that at all your honor what i was a problem is as i say three different cases in or cases what la pierre vance the court has said over and over again it's one thing that if you refuse to talk in the court doesn't have enough information to make a decision that's your lookout but it's a totally different thing when the court holds it against you that you refuse to speak now there was no lack of information here because we went on for ninety minutes discussing the facts of this case at sentencing all that information was before the court because m facts that were produced in the post arrest statement the only facts that were ever discussed in this case only two facts that didn't come from mr diaz his statements was the amount and type of drugs and the cargo because he didn't know that at all that was one of the reasons he's a lower down he didn't know that information and number two that he was the sole driver which is sell fell in three times to three times that is no that was information that he provided during the same i know but the court has three times the court doesn't have to look at three times the same way that you look at three times well i mean can't you say can't you look at three times as not a minor role i don't believe that's true your honor because back in two thousand memo seven fifty five or sorry no it was even further back in two thousand two thousand and one who the spring sentencing commission said well look we're taking this the original nine hundred eighty seven guidelines  of discretion in the minor role assessment when the district court says this is the third time he's done that he's being paid two thousand which is not a pittance it's a considerable amount of money he's a sole driver occupant aren't there sufficient factual findings to take in outside of the realm of abuse had ninety minutes of him and i talking about this and he didn't mention three of the five factors well he called it a policy discussion the judge that we were discussing the sentencing and the fact that we were discussing as a policy it's only because where i was trying never mentioned them and he didn't in any way bring them into is now says and as i pointed out in my opening brief in the united states versus trujillo this court said under rita that if you make a non frivolous argument for a sentence normally the court is going to respond to that there's nothing abnormal about this case it's not frivolous that i cited all five of those factors well those were not frivolous arguments the court which should have for your benefit five done through every single one of those factors can't  count i think judge callahan and judge when make a good point the nature and extent of defense participation they can the judge can take into account he did this three times you're not entitled to this is a matter of right i mean a court can't tell you if you win well your honor it's a procedure where we're talking about here not substance in my correct your honor it is just as if mark does the fact that if even if he did it three times which he said originally and i argued in my brief is law the case he can't consider that against him because he made that determination the original sensing he said twice i in no way holding these multiple runs against you suddenly we come back to reset and sing and everything changes now guideline ranch when i went to one thirty five i believe without wrong and the first time he got seven day and the second time he got sixty right and i cracked on the numbers he got no he got seventy both times he gave sixty months good morning hours good morning your honour's may please the court emily kiefer for the united states it just seems like the district court probably had a discussion that now we're he's being hoisted in his own petard here so tell me why that doesn't complicate your case and what if what is your best argument to affirm the district court and say that the district court considered the appropriate factors and factored in the guidelines appropriately and and in light of his comments about the defendant not wanted of toff give me your best case and or stand your honor i agree entirely at your eighteen the district court even identified and said to defense counsel don't argue that i thought the guidelines were not mandatory that i'm not applying the guidelines so in that discussion the district court absolutely affirmatively said that and the best argument here your honor looking to twenty nine the district court here identified the applicable standard said it's whether the defendant has proven he's substantially less culpable than the average participant at that same time at year twenty nine and e r sixty one the i'm sorry sixty nine the district court said it considered all five factors under three b one point two the arguments of counsel addressed all five factors and the district court applied the multi factor test therefore no one fact by itself was dispositive and when the legal way to look at that is that this court does not require the court to tick through every single one of the factors either under thirty five fifty three or under three b one point two the counsel's arguments addressed those factors and the district court identified facts relevant to each of those factors now it's important also to remember that the district court was presented with a very limited set of facts here the only facts that were presented as to the defendant's post statement are summarized in a single paragraph seven lines paragraph six of page three in the pre sentence report and the district court in making its ruling on minor roll referred to each of those five facts in that paragraph so for example the defendant said in his post arrest it meant he was paid two thousand dollars he said that he had been engaged in drug smuggling for more than a month that he had done three prior runs this was the fourth drug run that he was arrested on he said of her opponent said that was for three total you're saying it four total if it's three prior and one exactly your honor that is what the defendant's post arrest statement indicates it's at paragraph six page three of the counsel filed no objections to the p s r and the district court was entitled to take that as a matter of truth therefore so the defendant basically only conveys seven lines in a single paragraph of the pre sentence report as his full summary of what he said post arrest and that included that he was paid two thousand dollars he had been engaged in smuggling for more than a month he had done it on three prior occasions he was recruited by an individual named jose and he had your perspective if the district court denied the role rejection because he and his fifth amendment right to remain silent the district court would not be wrong to deny the minor role adjustment if the exercise of that constitutional right led to an absence of information and that's what we have here so the district court focused on that we cause i think there were a lot of musings on the record and it's not entirely clear to me whether the district court because i think he said it both ways right if you if somebody invokes and refuses to talk to probation that's fine but then that leaves you with whatever record you've got a judge helen pointed out and the district  court on a couple occasions set that it's like you didn't talk to probation and permissions here to help the court and so now i've got to assess whatever i've got on this record here so now he's claiming he's a courier and then kind of testing that against the evidence are you considering the fact that he didn't talk to probation and the district court said something along the lines of well yes i'm considering does that create some marking this in the record as to whether the court in fact drew an adverse inferen from the failure to speak to probation and then help that against them such that we need to send it back for clarification no your honor and for two reasons first as your honor noted the district court very clearly at e r seventy to seventy one stated all of the facts the entire universe the facts that it was basing its minor role decision on and all of those facts are either drawn from the single paragraph summary of the defendant's post or a statement and the readily observable facts of the defendant's arrest that he was driving a vehicle that contained a significant amount of methamphetamine so all of those facts are completely divorced and devoid from any adverse inference that the defense says what about this or think that the and in response that the u s a s request for clarification i understand your honour's concern and what i would say is that we know for certain what this district court found its decision based on so if this defendant had reiterated the same facts that it had in that he made  the agent post arrest during a pre sentence interview with the probation officer the district court on those same facts would have denied a minor role adjustment and there's only so your argument is that that the court's response was just a straight remark that we know he didn't draw an adverse inference and relied on that because he already articulated the facts upon which he based the sentence and i get the argument yes among other things and the second point i would make is that there really is no there there are no mitigating facts that the defendant supplied during his post or a statement so there's no real adverse inference that the district court drew or did not draw from that defendant's post arrest statement with the defendant here would have well i mean i think the argument the potential argument for the defense is that because the court said that he held that against the defendant the adverse inference is that because you didn't speak the probation i don't know more about the not inappropriate for the district court to recognize that had a limited factual record and in response to defenses specific objection saying that the district court was speculating about why the defendant did or did not speak to the probation officer the district court appropriately responded and said as concretely as he possibly could at your seventy to seventy one this is the entire universe of facts and basing his decisions yes go ahead and that universe of facts was inconsistent with the grant of a minor role adjustment the defendant identified only one other person either by name or by function or role in his post arrest eight minute jose at eighty eight and at thirty defense counsel confirmed for the district court that there were no other individuals that the defendant encountered either by name or by role or function during his entire month of drug smuggling so the district court did not error in failing to compare the defendant to other participants it simply confined its analysis to the facts that the defense provided specifically what the defendant did and his role relative to jose what the defendant on appeal is asking this court to do is what this court in roe has milan and ro expressly said it should not do which is look to the entire structure of the drug trafficking organization as a general matter but then compare the defendant's role to that so it footnote five in rome as milan this court noted the district court was not could not rely on just generally the whole collective of people who send out the drugs and distribute them in roses this court likewise recognise that the district court that an argument that you know there must be some unknown network of people preceding the defendant that that would be insufficient to warrant a minor role adjustment and that's exactly what we have here we have the defendant outlining a very limited set of facts in the single paragraph of the p s r the district court crediting each of those facts and denying roll on that basis he did not abuse his discretion and finding that the defendant didn't meet his burden is key for we've got a background here the sentencing commission says this is been used to sparingly we're going to adopt a totality of the circumstances we then have a personel of this court that looked at the first record and said we can't tell what he did then it goes back and he says i'm going to arrive at a sentence and then figure out the guideline why isn't that procedural error it's not procedural error for a couple of reasons your honor in particular before when this court sentenced the defendant the five factors the nonexempt sauced of list of factors was not in effect at that time so now that list of five factors is in effect when it goes back on remand the district court expressly references all five factors at twenty nine and at e r s sixty the nine and says identifies a number of facts and those facts that the district court did identify relate expressly to factors one four and five so for example the number of times that the defendant has done this the amount of time he was involved them out he was paid all of those relate to the factors at least three of the factors under three b one point two specifically the nature and extent of his but i had the sense that he was praising her tato the case that he had been affirmed because of judge sober man's opinion  really liked who were the other average participants the defendant didn't identify any so at this point given his defendant's burden he hasn't met that burden of showing he's substantially less culpable than the average participant and the district cour to her toto was proper in that the facts identified by her toto remain relevant today so the amount of drugs the type of drugs as this court recognized in rodriguez castro the inference can be drawn that a defendant who has a significant amount of hard narcotics is not a lower level person is not somebody who doesn't understand the scope and structure of the activity somebody who's done this multiple times over a significant period of time the nature and extent of their activity factor for is always against a minor role and the fact they're being paid also weighs against minor role the thing that the only thing in her todo that was in tension at all with the amendment is the idea of a single fact or factor being dispositive and here the district court identified facts that relate to at least three of the five factors under three b one point two the panel has an additional question three plan over near time thank you for your argument you have one minute for a battle for just one point with all respect judge and when i don't think that the constitutional issue is murky it's perfectly clear the judge said i absolutely am using this against this defendant and he confirmed that to when the prosecutor asked about number two he knew it was a fifth amendment invocation because he said this is tactical and he's doing it to avoid something coming back and biting him he knew it was an indication of the fifth amendment and third but he also said the reason i said mark is that yes i agree with you that that's probably the most exactly his response to it when he's doing his judgment analysis so i asked myself why not why didn't you talk to probation why didn't you tell probation and here's the reason why didn't i suspect i can't prove it but because he was afraid that if he talked  probation he might say something he might slip up and say something that might work to his detriment you know it's a tactical decision that he made but the technical decision leads me to believe that perhaps this defendant knew a lot more or knows a lot more than he leads us to believe he drew a negative inference from his invocation that he knew more than he was telling and he used that over and over in his to dis to just discount everything that the defense has said he said you're not telling us everything this connects with his earlier discussion where he said you know every defendant has a motive to come in here and lie i've been burned before like i had defendants come in here tell me one thing i can't trust the government either he said this was it on the record no ship ago courier can meet this standard that is totally contrary to the point of amendment seven ninety four which was as judge pratt pointed out to make it less sparingly applied