about what law to apply there's no question it is to noble review no question the law here is straight forward minor protests right in the guidelines cited by the district court now when it talks about the application of those guidelines right in rojas halong it says the application of the guidelines is an abuse of discretion right in our law i can't go occupant of a car and he imported over twenty one pounds of methamphetamine that was ninety nine percent pure according to the amendment where they specify the different factors to take into account they support mr getting minor role the problem here was that the district court said he was the one who put the key in the ignition turned the car on knew there were drugs in the car and brought it across the border so he was not entitled to mine a that is not consistent with the guidelines the guide all of that is all of that is true until we get to the application of minor rule law role law to those facts he did put the key in the mission he did bring the drugs across that is fact yes and that the only thing that we now have to do is apply the rules as they relate to minor role reduction to those facts and as i said how do i go against rojas the law on that is the use of discretion the judge did not go beyond notes saying this was a substantial amount of know you're suggesting to me that a case that is dead on point in the ninth circuit should can be overruled by this court for what you suggest are the changes in the rules that the commission made we have now what you're suggesting we have intervening information say these intervening information we don't have a supreme court decision we don't have in the ninth circuit decision we got a decision dead on the quantity of drugs can be an independent basis and that is inconsistent with the guidelines which factors which means i overturn it as a three judge panel is that what you're saying it means this case should still be remanded for the court to consider the factors that are listed in the amendment now the other thing that the district court here took into account was that because did not have a plea agreement that is not a factor that is supposed to be considered at all in determining whether mr enrquez had a minor role he said several times now there are situations where i have  granted minor role when there is a plea agreement he said throughout the proceedings just as he said it at the initial sentencing that is an incorrect analysis and because of that change in sentence was due to error by the probation officer yes and that was a mistake with respect to the base offense level based on the amount of the drugs here i'm talking about the supervised release where there had trial judge increases the sentence after a successful attack on the first conviction and the reasons for the enhancement do not appear in the record yes there's no question the court receive new information in this particular matter is your idea it's right in the record is your honor talking about the da seven lab yes your honor except that the reasons for the increase should be based on objective information concerning it has nothing to do with his particularly conduct he was still guilty regardless of the purity of the drug but on the second i think but but you're saying it has no relevance on any level the mountain tracks and the purity it has no relevance to the supervised release supervised release is a separate calculation it is not a substitute for incarceration as probation is so after the custody all time the supervised rel mandated by statute to be minimum five years there is a separate guideline five the one point one one where that ten the judge say something it could be for life wasn't their stats i mean they can give you supervisor his release for life yes ok he didn't do that but no no but why was it necessary to double it from five to ten years there was no new information with respect to mr and because the other thing is that the purity of the design what do you before that affects the base offense level your honor and the da seven lab report was from december two thousand and eleven the prosecutor had it the prosecutor admitted he had it that we argument against the prosecutor but it seems a little tough to make that argument about the district judge you know has new information about the quantity and new information about the purity and now you're suggesting based on our president garcia gui's are and horror there's nothing new here the reason is not an objective objective information of identifiable conduct by mr  the daniels up again on behalf of the united states your honor argument is the same in this case the district court was not clearly erroneous in determining that this defendant was not entitled to a minor role either under the  guidelines introduces the first hearing the governor had it is accurate that appears to be the case from the record your honor and it's not clear why that wasn't given to the court i think there was some discussion with the court after it was handed over and when in which the prosecutor discussed the fact that his recommendation would have been the same with or without it and essentially just didn't submit it because it was going to affect you know what's the relationship between increased purity of the drugs and five years situations he would increase the supervised release in stead of granting a higher custodial sentence wasn't entirely clear that there was a direct tie between the purity and the supervised released it  waited and the question is vindictiveness and the appearance here is he did it because of the report is accurate the appearances who increase in supervis think i'm going generally the government because the government didn't even know it existed didn't produce it in a timely fashion yes and it well i think the answer to that is we can look at the record and look what the judge said and look what the prosecutor said at the time the prosecutor turned over the new da seven at the hearing he made it clear on multiple occasions that the government's recommendation of one hundred thirty five months was not going to change because of this and that it was providing it to the court so that the court could correctly calculate the guidelines the same way that when the district court imposed sentence it indicated that it was doing so not to punish the defendant for appealing but because it was required to calculate the guidelines and based on this new information showing the purity level that the guidelines were higher the court decided that rather than increasing his custody all sentence to reflect that that he would increase the supervised release but this point this case is directly on point with garcia which the court addressed that exact fact pattern and said because the court was increasing the sentence to correct the guidelines and not out of indictive ness on the record made that clear that there was no due process violation but the defendant's argument i think is which is one i thought of which i thought she made pretty spectacularly a minute ago he is role did not change one b ased on whether the mixture was clear how pure it was or it wasn't he didn't have any idea whatsoever about that and he did the same thing and that's true in many of these cases but the guidelines call for higher sentences based on what the defendant actually brought across and in this case the whether or not he knew even the type of drug he was bringing the fact remains that at the first hearing the court assumed it was a me mixture at a base offense level thirty six and by the second appearance it was clear that it was should have been a base offense level thirty eight the district court could have increased the sentence instead it chose to do it increased supervised rel otherwise the government why didn't the government sanction a due process by giving the lab report after it came back well your honor there's no evidence or even argument of actual vindictiveness in this case the question is whether there's a presumption of indictive in this based on what the proper the timeline of what occurred and if you look at what the prosecutor actually did when he handed it over to the court he told the court multiple times our recommendation of one hundred  thirty five months is going to be the same we're providing this to the court so that it can provide correctly calculate the guidelines because of that because of what the reasons the prosecutor gave it to the court there's not a presumption of vindictiveness in this case and even if there was that this is not a typical prosecutorial vindictiveness case where the issue is something that was charged or an enhancement was broader and new  indictment was brought this alternately as a question of sentencing and regardless of what the prosecutor may have argued to the district court the ultimate question for this court is whether the district court properly sentenced him whether the district court was acting vindictive y there's no real remedy there's nothing that the prosecutor did that could be taken back or change there would be in a typical home once percentage with fact information can't judge have ignored it  are the court made it clear that the guidelines require the district court to properly calculate the applicable applicable range so under the law once he knew what the actual base offense level was he was required to apply that to the facts factors outlined in the amendments the court here consider the fact that there were ten kilos of pure methamphetamine that was worth between two hundred seventy seven and three hundred eighty one thousand dollars and was the equivalent of roughly  hundred thousand individual doses of methamphetamine that amount alone was sufficient to demote deny minor role but there are additional factors here as well including the fact that the defendant was receiving a payment of two thousand dollars that the driver and so occupied  vehicle and that he was taking the vehicle to his own workplace at a wal mart in the united states all of these factors under this court's case law supports the court's decision that this defendant was not substantially less culpable than the average participant and you this case is very different from garcia because our the thing is in garcia bizarre in the probation report there the amount of the mixture of the meth was included and the amount of the purity of the meth was included the district court erred there by picking the lower base offense level which was the mixture so that information was available to all parties at the initial hearing in our situation with m what can a judge do when they have that information will not mean does he just look the other way and say i know i was wrong the way i calculated it before but i'm just going to pretend like i never saw this no but those are two separate things first that the prosecutor w vindictive in introducing this evidence in march at the second hearing after the re man gives the appearance of indictive this and that's one reason to remember on the other hand the judge was vindictive i'm second issue my third issue is that the prosecutor was vindictive so no i go back to the base offense level that was changed because of the d a seven has no bearing on the amount of supervision in this case that affects the base offense level but that calculation is different from the determination on the supervised release and that was the mistake here if there is a rematch and we request that it be reminded to a different judge because that would give the appearance of justice and the facts here were not many and so it would not be difficult for any other judge to make a determination on the issue or the