dale had a very limited point in all of this he guarded some immigrants illegal aliens who had been kidnapped from another coyote and taken to a safe so the first point that i want to make to the court is that so it is absolutely clear that this is in gaol the supreme court observed that a district court commits procedural error by a properly calculated guideline arrange and that's what we're here about today is i believe that the judge the district court erred improper got delayed in the guidelines right as a result of an incorrect guidelines calculation that would usually it was for the same district court judge held that not only is that correct in other words if the district court does not do the first thing it has to do the first thing has to do under was as syncing determine the proper guideline range the number forty two thirty six thirty one the number that if done wrong is called for verse where it doesn't matter whether it's pla novo review the guidelines well there's a lot of dispute in the present case as to what was playing or what would i know that but it makes a difference right to this whole analysis you just said as what i wanted we would reverse based upon just giving us an analysis of the procedural so i was asking about the procedural challenge whether the guidelines were properly calculated whether as a matter of law x can be a minor enhancement or why it can be ransom and so on and so forth that's those are questions of law but whether we review them de novo or play near makes a difference right i think they are to be reviewed sentencing guidelines are reviewed  right in but again with a narrow prize if you didn't preserve the air and then the question becomes not just if it was wrong but was it really wrong and then you have the other two prongs about affecting the rights and so on well the three point four minor because it is a kidnap for heart type situation that it was built for and there is a first circuit case that says that is only involved in kidnap for hiring is not a person who's have two points over that issue and i think i think that the court does look at pulled or not it was objected to below zero but i think you also have to look at the record the record on that point is clear that the judge said take it up o it might be a point for appeal and here we are yes ok but i don't believe words don't get to decide the standard review for themselves which is much appreciated i'm sure so what cases do you have that if a judge says something about the word appeal then even though there was no objection it somehow becomes not plainer it becomes dana or some other state or have a case what i have is that from the language there i believe that the lawyer objected the judge said take care you can take it and he said yes i will he didn't say i will he said yes sir and so i think that that is the same as i'm going to take it up on appeal what else can you what else can one say you're in front of a judge who may have the power and did reduce the sentence significantly and so i don't believe he's trying to be cross with the judge i think he was trying but he was trying to protect his is right and so i do believe in that particular point that we're not looking at a plane or you think that's air preservation for the just say this might be  florida say yes or that's that preserves air i think that with no other objection having been made known briefing no citation to anything no discussion that's a good enough without getting into the quality i think that the judge did i think that judge did not say i'm sick was sponte preserving the air free the judge said i'm not sure the supplies might be a point for appeal yes or i'm asking is that enough without any embellishment on what everybody was thinking and in that hearing it was brought up is that right i'm sorry in that hearing the issue was brought up in terms of whether or not that enhancement should apply i was not present i didn't have a copy of that so i don't know i cannot tell are the good judge didn't tell the defense lawyer you were not present for earlier discussions today that leaves me with the impression that yes yes your honor that that's exactly what  occurred however oh i was a will say that the judge said and i read it again this morning this is i believe may only apply to kidnap for could not for our which is the situation that the first circuit says you know only applies to it which leads me to the second point which is a another player issue the defense lawyer asked to the six point ransom objected to the six point ransom but he objected mostly factually we didn't ask for money to get your kin back we ask for money for transportation which comes from another case that fisher get looked at two thousand five point here today we believe that he preserve the error of the six point  on ransom but our point here today is that it's an impermissible this is adding the six points is impermissible because to compel is one of the elements and this cour several cases you don't look at the elements but the prerequisites and so that the government points to rear bonito and that was a case in which  what they look at is whether or not it is a prerequisite of the to compel another person to take action and in fact when the government out its facts for this service the government said it us proof was threatened to kill injure and continue to detain individuals in order to compel the third person to pay a sum of money as an explicit and implicit condition for the release of said individuals if that's true then the demand for money to compel action by the relatives of the third person makes it a prerequisite to the crime and there's a prerequisite to the crime it is an impermissible enhanced would have been included characteristic of the office and therefore as prerequisite you don't apply additionally apply this exposure addition the argument is that the base level thirty two which is already six or seven points higher than cooperate listen rather cooperate in his brother than cooperate without telling me and then his is brother gave more information will of course are represented a nigerian woman who was once indicted for because she was the girlfriend of the leader in the government says you can't give us anything that she's just the code for and she knows nothing louis today oh did not know what his brother was not as involved as what his brother was could not give the information that his brother gave even the other individual who was a leader of an organizer recruiter jose angel lopez only got one hundred twenty months but let me ask you i want to go back to the minor enhanced but really quickly even if we followed the alvarez case from the first circuit is there a distinction here because quiroga got paid just to care for the hostages this quiroga is home that the hostages were held a in this case is that mr snail received no money because it must look too early that he'd been involved in at least one other activity nesa dispute we had with the government because the government was involved before there and there's no evidence of that but he was paid two hundred dollars in the other case in which he was involved which he walks the individual illegal aliens who have been kidnapped for a period of five days i think it makes it the facts fairly identical that just like the lady whose house this was he would mean paid to care for him and treat it isn't that factually different from ours that's my only question only if you think the housekeeper is different from the house guard i may be wrong but at the lowest point well on the disparity well the court granted this disparity argument and the government says they believe that point two but it's clear on the record that the defense lawyers object you don't disparity grounds on three five five three eight six grounds but the disparity was with his brother as opposed to he and i would just hope among the other people and of course the case laws strong enough that that  i may be wrong on that point but however the real issue on that point is that if the if the court is with me with mr dale as to the three points the six points and the please the court my name is terry lee o'malley i represent the government in this criminal case mr studio raises for issues of sentencing error here on review the parties do disagree about what the standard of  government's admits that he cannot show error under any standard of review even in the face of the operative case even in the face of the over so did you make the distinction that i was asking accounts yes sure about cakes point explain that to me that ye honor in the in the alvarez case the portion of money that was paid to any individual actually there was no money paid upfront because it didn't come to fruition that it was going to be a part of the ransom there was also in that case as i recall no actual instance of the child going outside really of the care of the individual who had kidnapped the child the government argues that our is quite house is clearly distinguishable from this case on the plain language and the plain language shows that indeed there was a minor there's no issue there there was money exchanged regarding the care of the minor the minor was placed in the care of someone who had no legal right to the minor and  participate in the actual grab you know he did not he was not this one right at this one he was at the house more thorough good taking care of the minor al yes your honor that is correct so in this case and that and i believe that i did state in the brief that it is possible that other people could fall into that category the cleanest version is ms corowa because she was not working for any portion of the ransom and fact it's not even clear that she realized this was hostage taking rather than alien smuggling which is huge distinction in this case and and i don't know that i can stress it enough that mr c d o pled guilty to hostage taking with ransom demand he did not plead guilty to a lie and smuggling now two of the issues that are up here the the minor victim being involved as well as the vulnerable victim advancement would both be decided if this were an alien smuggling case but it isn't an alien smuggling case this is a much more serious and deprived offense and i want to ask you as we're talking about the minor victim about this standard to review issue is it enough to preserve error for the judge to say this might be an appellate issue in the person to say yes sir does it need to be more no your honor i believe there needs to be more in this case  that well i don't know where this morning and i had it come up earlier today in his brother's case i had it come up earlier today i considered it and this is the determination i made on that issue so the judge was saying i made a ruling i agree with you he could have said and yes your hon to that ruling but the fact is i don't know that the judge was asking for me and put the judge was the judge with informing him i had this same issue earlier today this is my review of it this is my analysis and this is my ruling isn't that what happened yes your honor  it's outside of the record here but i did have access to the sentencing transcript for his brother and the issue was discussed in some detail that morning and isn't the point of the rule that says you got to raise it before the district court in order to preserve it isn't the point of that so the district court has an opportunity to hear the objection and then to really yes your honor but also these these are two different individuals who play two different roles and that's part of the of the of the claim of errors well it's not just whether this minor victim enhanced man should apply to one defendant but it's whether it should apply to mr the we city and we consider this other transcript that no one has brought forth to us as part of the record here no your honor it is outside of the record i just wanted to know i know you're answering the question you're being honest and i appreciate that i'm asking a different question should we consider because i'm sure there are other sentencings going on all the time all going to court making all kinds of be obvious but isn't this one with the judge in fact as a part of this sentencing reference the earlier here isn't it what happened yes you're right it is what happened in this case also i think there is a distinction and recognizing that counsel below did not even recognize that that in his mind had been implied so he was not prepared to argue whether the advancement should apply not he didn't even believe that it had been applied therefore planers should apply in this case as far as the as the substantive matters regarding the mine are enhanced by the government does even if we disagree with it within creating a circuit split saw so forth so i need to understand is there a way in which we can accept the reasoning of alvarez and still rule your way and are you making that argument that a ruling in your favor is consistent with alvarez or are you saying we have to create a circuit split to disagree with alvarez your honor i believe you can rule in the government's favor and still not  quibble with alvarez because it is distinguishable but it is distinguishable on on the levels that we've discussed already most specifically there was no money transfer in from one person to another and all  that is completely different from this case there was money all the way rail and individuals were paid specifically to care for the minor victim so in that case it is clearly distinguish but there are no further questions on the minor issue on live to the vulnerable victim and hanson and this case the main point is that these individuals whether we count the other i think it was either twenty fifteen individuals that were involved or relevant conduct in this particular case these eighteen individuals were targeted specifically because of their inherent and their situational vulnerabilities as illegal aliens and i'm like ok such as in an alien smuggling case where the fact that that aliens are and errantly vulnerable is taken into account by the base offense level that is not the case with them with these victims these victims were not only and heritage vulnerable based on their lack of understanding of the language their poverty their fear of being deported or arrested the fear of their families being deported or reservoir you might not report the kidnapping not a citizen is kidnapped his family might be afraid because even if they find john and john gets deported exactly john gets deported and perhaps john's family gets deported as well because it would come to the attention perhaps that they were not legally in the country factors to consider are vulnerable vulnerable victims are less able to resist they are less likely as you say to report the crime they also have an impaired capacity to both detect and prevent the crime and that was particular and particularly the case here where these individuals were already at the mercy of one group of alien smugglers who had not yet transferred them to their destination they might not have even known where they were they certainly had no idea when this hostage taking organization kamen and said we have to move you they didn't even know it was new group they were completely utterly vulnerable to anyone who would come in and say we're going to keep you safe we're going to keep you from being arrested and then they were taken from one stash house to another from one organization to another they were economically appealing to the hostage taking group because there were a number of them there were eighteen and one house they were apparently not well guarded making them also vulnerable not their vulnerabilities specifically but a situational vulnerability so in this case the government argues that the same argument that would apply to alien victims of alien smuggling simply does not apply here hostage taking is a completely different offense these particular victims were more vulnerable than other victims as you say could have been taken and a hostage taking situation and the government submitted it was a more deprived or more deprived act because they took no risk they simply stepped in to a group of individuals who were not guarded they took them away into a situation and then they held them hostage for more than they had already agreed to pay for apparently i believe the record said twenty five hundred an individual has as what they started trying to extort out of the families so for that reason the government believes that the ball in a bowl victim in hands when it should apply what do you make of this argument that luis indio should not have been treated the same as one city you because had best he was in an average participant whereas once a deal was more of the i don't know the head of the whole play out your honor at louis  was an average participant in hostage taking he was not an average participant in alien smuggling yet but he said your opponent as i understand it is saying not just comparing luis to the other covered by rule thirty five fifty three a and congress is recognize that there are going to be some disparities that arise the issue is whether they are warranted and one of the disparities that congress has set forth and accepted government also wants to point out here that this defendant luis actually benefited by his brother's substantial assistance agreement with the government despite the fact that he gave nothing of use so if you look at this his sentiment not only is there no disparity between our unborn to disparity between him and any other individual involved either in ali smuggling hostage taking but he was actually able to benefit from the substantial assistance motion without himself taking any risk i think it's important to note in this case that that there were no other defendants who were similar similarly situated to mr city you know here there were no other individuals other than his brother who pled guilty to hostage taking rather than alien smuggling and i'm like his brother mr c d o here did not provide substantial assistance to the government therefore the un warranted disparity just can't i just don't think that you can you can see here that there was any other individual that he should have been compared to other than his brother your honor if you care enough for the questions carpenter all the evidence is he was led into this by his brother was there aren't these exactly the arguments you make to a district court in a district court weighs in considers and makes a decision and gave a beloved guidelines at least as the court calculated guidelines sentence and it's not really up to us to say wow we should've gotten a little more mercy in this and that but let me start with alvarez courtship and ask the government what do we do with alvarez if we make the same ruling as the first circuit do we that the minors enhancement should not have been applied if you take that off aren't you down to a range of two hundred sixty two months to three hundred twenty seven and i would agree with the court except for gall and vera luna and more of the same to us and the reason for that is that when you misapplied and you missed the sentencing guideline number it takes the whole process and so goal says you reverse and you send it back unless now there were earlier harmless error cases from the fifth circuit but in those cases the sense in court always got the number right this case appeared to forty two we say it's a thirty one but whether it's a thirty one or thirty five or thirty eight he still got the number wrong and so under under their own look you say he got the number wrong because the enhancement should not apply that's correct i'm saying if we agree and same sentence one well intended and i'm i'm going to publish that as an advance for doing it but this is one of those times where again the judge referred to the earlier sentencing and it seemed to me at least read the transcript he was very careful about this sentence based on what he had given mr studios brother his brother got a hundred and eighty months is that right yes wrong and it just seemed to me that he wanted to make sure he didn't give any more than this brother and more than anything else your client sentencing time to what the brother get now apologize for in to the earlier hearing but all i'm saying is it seems to me that the sentencing in this case despite what may or may not have the reason before was that he should get twice as much but if he only if that if the number was lower instead of three sixty it was one hundred ninety five would he have said he should've gotten less than his brother that's the second element of evolve which the government cannot hold cannot show that if he had made the right sentencing guideline young occupation that he would have imposed it for the same reasons they may be able to show were imposed the same sense because he said he should be the same as his brother but it may have been for a different reason they cannot show in under a muslim says you therefore must reverse and send him back for his sentence so i think if you rule