good morning and welcome to the survey of our session judges knew some chilled flight and i are very happy to have you with us oh we were supposed to be a jacksonville for the session but obviously the virus had other ideas but hopefully with the advent of the back the vaccine and the growing numbers of people it ocular it will soon be able to return to our normal procedures in the meantime we're happy to have you with us we had some technical issues particularly on my end on tuesday so if we have any of those with you or with us just hang in there and we'll try to fix this quickly as possible ad get everybody on line again with that we're ready to get started we obviously don't have a light system for you but there is a clock on the corner of your screen that tells you hire doing with time and valerie is our courtroom deputy who will also give you a two minute warning nor the district court in its findings mention the safety of all distinct legal standard making it unclear if the court resolved that objection or applied the proper standard doing second under korea jala even if evidence is sufficient to show that a firearm possessed and so that defendant possessed a firearm in connection with an offense a defendant may still be safety valve eligible if he negates that connection by a preponderance of the evidence each one of those provisions has any connection required right at putting aside for a moment your sufficiency of the evidence argument didn't the district court find here steals possession definitely was connected with the cocaine and that he intended to drive off with the cocaine in the truck with the protection of a firearm isn't that enough given that connection is an ultimate prerequisite for each one of those two provisions so i think it's not enough here and i think the reason is because it's unclear when you look at the record in context what exactly the court met when is that that it was definitely connected isn't it because you know it could be that the defendant the court was talking about whether mr harris had shown that it was clearly improbable that there was a connection but the other isn't find one is that mr carrasquillo went into the residence took the package and went back into the truck with it before he returned to the residence once law enforcement arrived right which indicates where at least suggest or allows an inference that he was going to leave in the truck with a co pay and the nd possible fact is that they found two hundred and fifty grams of cocaine in the storage locker would have to look at those actual facts which is that he didn't have the firearm with them when he went to the residence so that moment when he actually was perhaps vulnerable with the cocaine you know out in the open he didn't have a firearm with them he didn't take the firearm at them again when he left when he actually was you know potentially confronted by police he didn't use the firearms i think that negates you know some presumption of a connection but i would also say i think your honor you know you really put your finger on the on the point here is that the court made in france on it doesn't look to what might happen you know in the future if an arrest hadn't occurred but bigger problem here too is that those inferences you know that ultimate factual finding by the district court of that's what we think it was mr carrasquillo lack an opportunity to object to that he lacked an opportunity to tell the district court why that inference was wrong so we don't have anything on the record the district court didn't have the opportunity to clarify what it meant by that where gather how it put together those differences then have the opportunity to fill in any gaps in the record clarify the standard that applied and that's why under jones you know that's what the district are supposed to do is that we don't have a record like this where there's some confusion there's lack of you know there's lack of analysis remain and secondly as you were just discussing with judge jordan this back to a question about whether the district court made sort of unwarranted inferences about what would have happened had he not been arrested with respect to the border argument i mean is it your position that remained is required every time a know i bind beyond a reasonable doubt that the bar here was used in connection with the events would that have been sufficient i think that would certainly be better your honor because at least you know beyond a reasonable doubt is is some kind of legal standard that we're looking at the nabi you can place in a hierarchy with clearly improbable or not probable and i think the problem here and i want to be similar but distinct and we don't have anything from the district court acknowledging that distinction or acknowledging you know the specific legal burden that mr carrasquillo had i just don't think there's enough on the record in this case to know that the district court understood or apply the correct analysis so i guess to you as you as your objection them just to kind of parse them out is your objection that the district court didn't mention the safety  or that the term definitely connected isn't specific because definitely connected i don't i don't know that i see a whole lot of people suffer space but we definitely connected and beyond a reasonable doubt that in itself but maybe your position is that even if you do sort of you know even if even to the logical you know sort of necessity of the of the binding is good enough if you have it in the district court hasn't mentioned the safety of standard that it just doesn't matter what he says i think it's important our for us for the record to show that the district court realized that it was resulting to separate objections i don't know that it had to necessarily list out exactly the safety valve standard but on this record as does the district court that was silent it's unclear that the district court knew i had the right standards and so because the record is mistaken and both of those respects i think this is a case where jones would have rema jones error war it's really man so another thing would be in the p s r a dent on probation did respond to both of mr kerry's objections but then in conclusion and made a misleading of law at the very least it's misleading it's confusing we don't know the district court look to that but i gather i don't want to get too deep into philosophical constructs but there are different versions of the two and so you could a fact finder could determine that the government didn't meet its burden of proof under to the one point one and that mr carrasquillo didn't meet his burden of proof under five c one point two right so think of a case where the where the church thought that the witnesses on both sides of an evidentiary dispute were not credible and each side had a burden of proof that that fact finder could find that neither side given the respective burns succeeded i think that's absolutely possible your honor and i think if i could just have one moment i said i'm the worst ok and i this morning i think that the argument both written and orally does disservice to the record that was before that is before this court the cont the sentencing hearing was that the defendant presented basically three points this points number one was that to any one point one in his image should not apply is point number two was that the  question related to the jobs issue yes or as mr howard indicated at the end of her argument there was a statement by mr curtis chios council that he was likely or intended to testify the defense whether they had any evidence to present and didn't solicit objections in other words you could see a fact finder having a certain view of the evidence and issue one where the government has the burden of proof and presents its witness right officer all right on the net when you turn to the other issue where mr confiscate your has to burden and a lawyer has said that he is likely to testify he doesn't testify the judge doesn't ask whether or not there's any testimony or as it is from the defense not five c one point two and then doesn't elicit any objections other channels any problem there  allocution that's not a that's not a statement by a district judge of turning to the whole year on one side of the case and saying ok you've now got the burden not five c one dollar you told me your client was going to testify is he going to testify what you just referred to at least in a normal district judge pollitz seems to me allocution that's very different that asking a what i was also saying about how this this argument is coming or it as a disservice to not only what transpired in the district d court but also it's a disservice to the experience  and he didn't test it by then and no one else came or maybe he's somebody is coming up or to say you know tow truck drivers are you know in a precarious situation and that's why we had the gun in the  truck there's none of that and there's no indication that the district court present prevented the dependent from saying any of those types of things presented any evidence to support that and the judge said that there was no evidence evidence and the no evidence binding takes care of the burden whether it's under a preponderance which is the burden for the same develop it certainly takes care of the burden it's a clearly improbable standard therefore if the defendant had you can testify to the same thing we'd be in the same place because at least there would be evidence but there was where this connection between the legitimate tow truck service and the gun isn't gated because then that said he didn't have any dealings with the  and he said he d never he hadn't worked since two thousand and eight so he wasn't getting any income from the towing service either so that also but just as the courts finding that there was no evidence to proffered the defense counsel says that the whole transaction was supposed to be between drug dealers he said that the transaction had been arranged so that there would be no requirement that the that there are a b other people involved it was just that he was supposed to get out and make it a bail h supposed to provide an address for it to be picked up but other than that there is no evidence as to any of this if you look at the sentencing transcript nobody tested by no other person even if we say that then it will somehow prevent it from testifying on his own behalf nobody else came in there to say anything about how this was supposed to occur there being no evidence  gun in the truck and the defendant does not negate that and it's clear that that buying the supports bo ok thank you so much for it's this house you've got your rebuttal time but i want to eat up a little bit of that at the beginning so in terms of whether or not mr  osky owes failure an inability to testify as to insert the district court also had evidence from his change of plea hearing where he agreed that he was supposed to drive off with the wish that he was supposed to  leave with the cocaine and leave it where it was going to be received and somebody was going to pick it up what else was he supposed to add to that statement so yeah i think that statement go ms rhodes was talking about where the district court said there's no evidence it was just going to be you know a drop off or another deal or that's what mr cures you know admitted in his sleep hearing i was just supposed to leave the package or someone else was supposed to pick it up  i think that goes to the nature of this offense and the facts of the bands which unlike in other cases where are you saying it was designed not to have confrontation was not designed to have negotiation and there are facts supporting that not just mr pearce you know as testimony as change of play hearing but also the agents testimony during the sentencing hearing on cross examination when he said that's what this kind of scheme is you know there wasn't supposed to be any negotiation with a fed ex delivery person and very often these you know individuals who are caught up in this are involved by simply receiving the package that's what agent testified to so i do take issue with the fact that the claim that there's no evidence in the record i claims that that evidence was irrelevant on page thirteen of the sentencing transcript which we know is not true as we look at other safety now cases and that's something that the district court will hang its hat on you know do i believe the defendant about do i think that the gun ha more than one purpose we don't have anything in the record showing of the district court considered back and i would just briefly mention as to the tow truck i do admit there's not ambiguity in the us are about mr here is he has a role with the tow truck company but i would point this court to the fact that he is listed as a manager for the tow truck company and the tow trucks are listed as assets for him so i think to the extent that there's any ambiguity in nick u t about what was it the tow truck company and i think finally the last thing i just want to bring it back to is mr curacy is testimony that he wanted to testify and we do see he didn't get a chance to testify that immediately after his counsel finished the game the district court called on the on it and that's once again my are asking this court to simply do it jones requires which is to vacate the sentence and remand her resentencing so the district court can resolve these objections about the safety valve in the st instance and if there are no other